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With Legal Gray Areas, Art Heists Go Digital

Point-and-click age makes for murky copyright arguments

By Wesley Oliver,  Newser Staff

Posted Jan 30, 2009 3:56 PM CST

(Newser) – A disconnect between the artistic and legal communities is reigniting the debate over copyright infringement, the Wall Street Journal reports. The law says an artist can adapt an existing work only if the resulting piece is “transformative,” or provides a new spin. “It’s meant to be a gray area,” explained an attorney. “The copyright law is designed to be flexible.” But in an age of easy downloads, the issue is coming to a head.

Complicating matters is the notion of trying to apply legal definitions to the not-so-firm artistic definition of what it means to transform something. When is it a legitimate move in the name of art and when is it just stealing? “It is very much a visual thing, and there is no bright line that artists can go by,” said the attorney. Over the last 20 years, judges have favored artistic license, but another copyright lawyer warns, “Maybe it has gone too far.”

Artist Jeff Koons has been sued twice by photographers for copyright infringement, the first time in 1989 in a case that he lost and the second time where he prevailed.
Artist Jeff Koons has been sued twice by photographers for copyright infringement, the first time in 1989 in a case that he lost and the second time where he prevailed.   (AP Photo/Thibault Camus)
In these days of sampling and point-and-click downloading, new battles are raging over what constitutes copyright infringement.
In these days of "sampling" and point-and-click downloading, new battles are raging over what constitutes copyright infringement.   (Shutter Stock)
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The law states that the use of a copyrighted image is transformative based on the ordinary lay observer's sense of if the new work is different and how different it is. - John Koegel, lawyer

Where derivativeness ends and transformative begins is not at all clear. - Robert J. Kasunic, principal legal adviser, U.S. Copyright Office

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