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Coloring Pages, Copyright, Transformative and Derivative Works

We’re having a thoughtful discussion of coloring pageson the Squid∩ Community  message board.

A common question has come up: is it legal to trace or create your own art using someone else’s photo or art?

I want to copy my response here discussing transformative vs derivative work,  partly so I can find it again, since it’s one of my more coherent (and brief) write-ups (with apologies to Susan for my coming-down-like-a-load-of-bricks AGAIN, gack.)


SusanVillasLewis wrote:

jaguarjulie wrote: Hmmm … so you can make your own coloring pages images by tracing over a great image … like flowers for example? What if those original images/pictures are somebody else’s with a copyright? How would one easily know that if it is a coloring page image?

I think one could make an argument that it would meet the significantly different test. (I’ve only had two sips of coffee so far this morning so barely functioning. There is a proper, technical term for it.) Basically, you’re changing it enough to be creating a whole new thing.
No, changing something enough to LOOK different, or even changing something by putting it into a new medium, is usually not fair use, and may be a copyright violation, as an artist discovered when taking photos to create wood sculptures. The artist was sued, lost, and had to pay damages. This is called a derivative work. 
What you’re thinking of is transformative work, which says it’s fair use IF you add substantial meaning, value, or ideas not present in the original. The word “Transformative” is confusing: in a legal context, it doesn’t refer to transforming a work from one medium to another (like tracing), but rather, whether you changed the message, the impact, the story, the ideas. [Recommended link: a good, clear write up of the legal difference between transformative and derivative works, including the parts of copyright and fair use law that make this distinction.]
There’s a famous case that straddles the boundaries between these two concepts: the Obama HOPE poster created by an artist using an AP photo. The painting conveys a message, and is very different from the original photo; there’s a lot of art to it. But the AP sued for copyright violations and demanded damages. The case has gone back and forth on appeal, depending on the judge (and who’s got the better lawyer). The artist finally settled out of court. I can’t remember if he wound up paying damages, but he agreed not to use photos for any more art.
Tracing photos to provide coloring pages is much less “transformative” than what he did, and his work was borderline. Yes, you’re adding value in the sense of hey, color this, but you haven’t created any substantial meaning or message different from the original piece.
 Now, I doubt that argument would fly if you were tracing something famous and identifiable like The Scream, let’s say. But a flower? No one would be able to tell if you’re tracing one of Deb’s pictures or one of O’Keefe’s paintings if you kept it simple enough, which is what it should be for a coloring page.
I’ve occasionally changed something beyond all recognition so that it fits the de minimis factor of Fair Use (tiny, insignificant portion of something appears in an otherwise original work). However, I would be careful about saying “It wasn’t by someone famous, and it’s not identifiable, so I can get away with it.” That’s like someone copying our Squidoo lenses because we’re not famous and our writing isn’t well-known. My thought is: let’s be kind to the little guys, even if they can’t afford Disney lawyers. smiley: wink
Copyright law tries to defend the little guys too. Fair use considers the “impact on the marketability” of the original work as one of the four factors of Fair Use. It doesn’t matter whether the original artist is actually making money on that piece of work: they might do so down the road, in just the way you’re trying to do, so that you’re competing with them using their own work. Whereas a piece of fanart portraying Harry Potter isn’t going to negatively impact the marketability of the Harry Potter movies or even official Harry Potter posters, which are respected, recognized, and already making gobs of sales.
Incidentally, The Scream is out of copyright: it’s oooooooold.
Note that I occasionally fudge transformative vs. derivative work myself! Here’s this portrait I made of Elrond, tracing a screencap from the LOTR movies. Now, I was trying to express my thoughts about the character, and his own struggles as a ringbearer. But is the picture really transformative, or would a judge rule it derivative? If the Obama HOPE poster is considered borderline, I’m probably pushing it. Whereas with this piece, where I’ve traced photos of a medieval harp and a movie sword prop as part of an original piece which tells a story, I’d probably get a “transformative” ruling. I’m not worried, because the studio that produced the films isn’t going to antagonize fans by suing us (unless we sell it). Whereas with this photo-tracing, I asked permission of the photographer and subject, because he was a “little guy” without bigname lawyers or a billion-dollar-grossing franchise.
I strongly recommend Stanford Law School’s guide to Copyright and Fair Use. I learned almost everything I know about the topic from that site, and it’s really readable and easy to understand, despite being written by legal experts (unlike what I just wrote) .smiley: wink Once you understand what the rules are, you can make informed decisions about when to fudge it. (Such as my own personal rule of, “be extra considerate of the little guy.”)


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