When Does an Artist’s Appropriation Become Copyright Infringement?

The Birth of Araki Daniel D. Teoli Jr.

Birth of Araki

Concept and post processing of found photographs by Daniel D. Teoli Jr.

An article from Artsy discussing the issue…


I generally don’t do much with appropriation of photogs work. Once in a while something will hit me. That was how The Birth of Araki came about. To me, non commercial appropriation of others photos or art comes under  the auspices of ‘fair use.’

What is fair use? (From Artsy article.)

“Since its incorporation into United States law with the Copyright Act of 1976, fair use has always been more of an analysis than a hard and fast rule. It provides a defense against copyright infringement in certain situations where an artist can prove that their use of the underlying work is justified. To determine if fair use applies, the court will analyze four statutory factors:

(1) the purpose and character of the use, including whether the use made of the underlying work is for a commercial purpose or for commentary.

(2) the nature of the underlying copyrighted work, including whether it contains unprotectable elements.

(3) the amount and substantiality of the original work used.

(4) the effect of the use on the market value of the original. In visual art cases, the first factor—the purpose of the appropriation—has been of overwhelming importance.”

A big factor that affects this issue is the artist’s net worth. If you are a wealthy artist, a lawsuit is more likely to be slapped on your for appropriation if you are making $ from it. If you have no assets, the lawyers are not that likely to waste their time.