Rights limited and fair use
The rights afforded by copyright aren’t infinite, however. There are limitations such that the provisions don’t stifle creativity in the name of protecting it. Many of the rights enshrined in copyright are tied to the physical work. But the statute doesn’t extend to more intangible aspects of a work of art. One cannot copyright ideas, procedures, methods, or concepts, unless they’re written down and recorded. Moreover, the written accoutrement (titles, names, phrases, and slogans) are not subject to copyright.
This is a good thing, otherwise calling your work Untitled would be a violation of copyright. Also not protected are works that change, like freestyle spoken word, or pieces of information that are universally available facts, like calendar dates. Copyright of a type of an art form that is inherently intangible—like a performance—applies to notations of the choreography or documentation of the event, but not to the event or performance itself.
Then there is Section 107 of the Copyright Act of 1976. Known as fair use, the provision provides a legal defense to copyright infringement. Put simply, that means that I admit I’ve taken work from other people, but I can argue that my use of that work still deserves protection. In the case of an artist’s image being taken without permission, its acceptance under fair use is contingent on four factors. All four inform a judge who makes the final determination of the fair use argument’s validity.
This means that there is always a degree of uncertainty to what constitutes fair use. But the most important question is, are you using the image for commercial purposes (if so, you’ll likely be in trouble) or non-profit and educational purposes (if so, you’re more likely to be in the clear)? It also depends on the nature of how you’re using the copyrighted work. The “less original” or less creative your use, the weaker your fair use claim. Another important factor is the total amount of the copyrighted image being reproduced. The more you reproduce, the less likely you are to be protected by fair use. Judges will look at the extent to which that reproduction impacts the market and undermines the economic value of the author’s original. Lastly, if the image is being transformed or parodied, it can also be protected under fair use.