Copyright and Fractal Art: What the Law really says

Copyright: the word that launched a thousand fairy tales!

Let’s see what the US Copyright Office says about copyright:

§ 102. Subject matter of copyright: In general28

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

What it means for fractal art: graphical works are protected by copyright

Here’s some more from US Copyright Office:

§ 106. Exclusive rights in copyrighted works38

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

What it means for fractal art: only the creator of an artwork has the right to make copies of it.  Only they can sell or distribute them.  This is what is meant by “copyright”.

There’s a few more rights for artists:

§ 106A. Rights of certain authors to attribution and integrity39

(a) Rights of Attribution and Integrity. — Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art —

(1) shall have the right —

(A) to claim authorship of that work, and

(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

(3) subject to the limitations set forth in section 113(d), shall have the right —

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

What it means for fractal art: Artists have the right to have their name displayed with their work so people know they made it.  They also have the right to prevent their work from being used in ways that harms their reputation.

And now for something, completely different:

§ 107. Limitations on exclusive rights: Fair use40

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

What it means for fractal art: It is not a violation of copyright to use an artist’s work for the purpose of criticism, comment or news reporting; it is actually considered “fair use”.  But in order to qualify as fair use four factors must be considered and therefore determining fair use is a matter of degree and argument.

Well, that’s what the law really says.  Surely quoting the documents of the US Copyright Office is the best antidote to myths and misunderstandings about copyright?  Or, at the very least, it’s the best place to start.  As you’ll see in future Orbit Trap postings on copyright, there’s more to know about all this.  But those other things are minor compared to the weightier stuff presented here.

A few of my own personal comments regarding fair use:

Fair use is complicated because fair use, as described by the US Copyright Office, is something that needs “determining” and involves “factors” to be “considered”.  This fuzzy quality to fair use is probably because the range of materials that can be protected by copyright –anything that can be “fixed in a tangible medium of expression”– and the widely varying circumstances in which they can be used makes a simple set of rules inappropriate (impossible?) for determining what is, and is not, fair use.

There’s writing, music, visual art, photography, film, dance and other types of media, and they can be quoted, critiqued and collaged and it can take place in newspapers, radio, television, advertising, online, public performances, and in a hundred other ways and finally, it can be for commercial or non-commercial purposes or even non-profit, charitable purposes or for purposes that are educational, entertainment, informational.  And then there’s examples of parody, making fun of something which can result in the creation of a completely new work which itself will be protected by copyright in addition to making claims of fair use of other copyrighted works.  And let’s not forget the future:  in the future there will likely be fair use scenarios we can’t even imagine today.

Copyright is pretty simple but fair use is not.  Copyright is simply about who made what and when, but fair use is about: 1) what exactly are you doing and why;  2) the uniqueness and eccentricities of the medium;  3) what is the core substance or essence of the copyrighted work and how much of that “thing” are you actually using;  and  4) what effect will the sum of those three factors likely be on the commercial value or potential value of the copyrighted work.

Legal precedence is the past judgments of actual court cases and has a great influence on future judgments because it creates standards by which those future cases are compared.  But with fair use, the cases that have actually gone to court and received a verdict often create very little precedence because those cases are so unique that they’re only partially applicable to the ones that may come after.  One needs to compare judgments for scenarios that are as close to their own intended fair use case as possible to be relevant.  But they’re hard to find and if they involve internet use, then they’re very hard to find.  All this makes for conflicting expectations between copyright holders and those who engage in fair use activities.

Anyhow, here’s a good copyright guide from Stanford University, albeit primarily from an educational perspective, but clear and easy to read.  There’s also some more resources from the US Copyright Office website.

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3 thoughts on “Copyright and Fractal Art: What the Law really says

  1. You will find parallels between fractal art and photography: Both are images of something that already exists in the world.

    I own the copyright to my photograph of the Golden Gate Bridge. But anyone else can stand in exactly the same location at the same time of day and take the same picture, and that photo is theirs to distribute. The same thing, then, should be true of fractal art – if they can produce the same image, they own the right to the image they produce.

  2. @ Mattnew
    Well, I’m terrible with law terminology even in my native language let alone English, but as far as I know, aside from the rights to the image and the visual itself, artists have the rights to their original ideas as well. You can play a song even better than its composer, but that doesn’t mean you have the right to the composition itself. You have the rights to your own execution of it and can play it anywhere you like, but you can’t claim you composed it. Same with art, you can make replicas of an original work (most art students are even required to do that), but you can’t claim authorship on the artwork itself, just the physical copy that you produced.

    Fractal art is the hardest to justify here though, because even in photography you have the temporal difference, no one can possibly take the same photo you took – even though they get the right angle, right light, right composition, they’re never going to take it at the exact same time for obvious reasons. The visual differences are minute, but they’ll be there – one less leaf on a tree, the clouds etc. It’s a distinction in theory really, but it’s there. In fractal art, you can actually get the exact same image, it’s not theoretically impossible. But again, as I said, the original ideas behind the works still belong to the artists I believe. I don’t know if it’s the law or the ethics and the unwritten rules that govern that, but you can’t go around claiming you were the first to think of it and to create it if it was done before, pretty straightforward really.

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