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More examples of transformative use

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Stanford Center for Internet and Society

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Berkman Klein Center for Internet & Society

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Transformative Works Geek Girl Con Panel

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Fair Use in Film Video Series: Transformative Nature

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In December 2013, Beyond Pix hosted Fair Use and Copyright Issues in the Visual Motion Arts with Julie Ahrens of Stanford Law School. Julie graciously spent the evening explaining the nuances of the Fair Use exception to copyright law, presenting actual cases in which Fair Use in media was a factor, and taking the audience's questions.

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This website contains various tshirts which are transformative

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A mashup is the combination of two+ different sources (characters, videos, songs, etc) often to hilarious effect. Sometimes mashup creators, by juxtaposing elements of different fictional worlds, create commentary on each world by the simple act of the juxtaposition. Synthesizing two worlds into one is certainly an exercise in independent creative expression, but is it copyright infringement? Consider the rise of mashup t-shirts that combine imagery clearly drawn from pop/geek culture franchises, as well as homage shirts - single-world art that attempts to capture the essence of a character or franchise without falling afoul of copyright or trademark laws. These uses are often less plainly parody or critical fair uses - the traditional core of fair use - but can be highly transformative uses of the underlying works.

The shirts below involve highly lucrative franchises of comics, movies, books, etc. (most with active sub-licensing markets for merchandise). Licensing markets exist for the use of a single franchise, but nearly never for the combination of two franchises, nor for un-approved fan-generated art.

Disney, for example, has officially licensed artists that create new artwork from existing franchises in Disney-approved ways with Disney-approved messages with a highly controlled licensing program. Should copyright law accommodate non-Disney approved messages even if the artist draws substantially from Disney-controlled copyrights? What if the artist wants to combine Disney-owned copyrights with a non-Disney franchise? Copyright law does protect characters and fictional worlds to some degree, as well as derivative works drawn from them, but it also protects fair uses of those characters and worlds.

Fair Use Factors

There are no firm rules in fair use law, which is full of ambiguities. Fair Use allows users to build upon the creative works of others without permission and is a limitation to copyright protection. The Copyright Act provides four factors to consider when deciding whether a use is fair. Fair Uses have traditionally included commentary, criticism, parody, quotation, news reporting, and teaching. The hallmark of fair use jurisprudence in the past 20 or so years has been whether or not the secondary use is transformative. When the character of the use is transformative, the commerciality of the use is still considered, although not necessarily dispositive.

Keep the four fair use factors in mind when looking at the shirts below. The source material is highly creative, and all these shirts were created for commercial purposes. Are the mashup shirts transformative enough?

1. the purpose and character of the use

2. the nature of the copyrighted work

3. the amount and substantiality of the portion used

4. the effect of the use on the market for the original

Other factors beyond the four above can be considered. Do you think it would be appropriate to consider the ability of artists to comment substantially on modern popular culture without obtaining a license as an additional factor? Should copyright law accommodate fan-driven art, even if it is created with a commercial purpose?
I invite you to leave your thoughts on the big questions or on any particular shirt in the comments!
Note that all shirt photos have been used with permission of the photographer.

Mashup Shirts

None of these mashup shirts are known to be licensed.

1. 1 Up Box Galaxy Shirt (Star Wars + Totoro)

2. Akibento Box: This shirt combines characters from Kuroko's Basketball, Madoka Magica, Kill la Kill, and Natsu from Fairy Tail.

3. Geek Fuel A Brief History of Time Travel T-Shirt

4. Geek Fuel The Dark Knightmare Before Christmas

5.Collectible Geek I'll Be Back To The Future T-Shirt

6. Geek Me Box Simp-Sons of Anarchy Shirt

7. Nerd Block Back To The Nightmare Shirt

8. By your Command Shirt: This shirt mashed up some Battlestar Galactica Cylons. "By Your Command" is the main catchphrase from BG.

The design itself is a take on the cover to Daft Punk's Random Access Memories!

Bonus hilarious mashup.

9. Geek Me Box DuckTales as PowerPuff Girls T-Shirt

"Homage" Shirts

These shirts aren't known to be licensed. Do you think they are fair uses? Possible trademark problems apart from copyright?

10. Geek Fuel Deadpool "Inspired" Shirt

11. I <3 Star Wars Shirt Punch Shirt

12. Sci-Fi Block Xavier's Gym for Gifted Youngsters T-Shirt

13. My Geek Box Mutant Academy Tee

14. Nerd Block Deathly Hallows Shirt

15. Pugs of Legend Shirt: It features Blitzcrank, Riven, Ashe, Ryze, and Teemo from MOBA League of Legends - as Pugs!

16. Tardis Schematic Shirtpunch T-Shirt

17. Fanmail Box We Are Groot T-Shirt by Risa Rodil

18. Fanmail Box Ollivander's Wand Shop Shirt

Licensed Shirts

The following shirts are licensed uses, just as a brief counterpoint to the above examples.

19. Funko Star Wars: The Force Awakens - The Resistance T-Shirt

20. Loot Crate Be Excellent To Each Other T-Shirt (Not a mashup)
Do you have a Fair Use Week wardrobe? Leave your reactions in the comments!

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Transformative Fair Use: A Mashup T-Shirt Roundup

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A mashup is the combination of two+ different sources (characters, videos, songs, etc) often to hilarious effect. Sometimes mashup creators, by juxtaposing elements of different fictional worlds, create commentary on each world by the simple act of the juxtaposition. Synthesizing two worlds into one is certainly an exercise in independent creative expression, but is it copyright infringement?

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Has the material you have taken from the original work been transformed by adding new expression or meaning?

Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

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In a 1994 case, the Supreme Court emphasized this first factor as being an important indicator of fair use. At issue is whether the material has been used to help create something new or merely copied verbatim into another work.

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                      Transformative Use

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                      Transformative Use

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Teachers may use them in the classroom.

Copies may be made for archival purposes or to replace lost, damaged, or stolen copies.

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Resources from the Web must be used with permission or appropriate links

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Images can be downloaded by students for projects

Files and video may be used in multimedia projects

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NO more than 5 images by a single artist may be used

No more than 15 images or 10% from a collection may be used

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Copies can only be made from legal originals

Only one copy per student

Only can make copies in nine instances per term

Consumables may NOT be copied

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Poems less than 250 words--or an excerpt of 250 words

Articles, stories, or essays less than 2,500 words

10% of longer work or 1,000 words--whichever is less

One chart, picture, diagram, or cartoon per book or per periodical use

Two pages from an illustrated work less than 2,500 words

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                                                         Fair Use Guidelines

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                                                         Fair Use Guidelines

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literary works (which includes computer software)

musical works, including any accompanying words

dramatic works, including any accompanying music

pantomimes and choreographic works

pictorial, graphic, and sculptural works

motion pictures and other audiovisual works;

sound recordings

architectural works.

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works published before January 1, 1923.

works published between 1923 and 1978 that did not contain a valid copyright notice.

works published between 1923 and 1978 for which the copyright was not renewed.

works authored by employees of the federal government.

works that the copyright owner has freely granted to the public domain.

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                                                                     Copyright

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                                                                     Copyright

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The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship.