How does the exclusive right to public display apply, e.g., to t-shirts? 17 USC §106(5) says that the copyright holder of work holds the exclusive right to display the 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 Yet I publicly wear shirts with copyrighted designs all the time, on clothing I legally purchased from the copyright holder. Is this a prima facie case of infringement defensible via fair use? Or is it allowed by some other legal mechanism? Or is it flatly illegal and merely a terrible business idea to litigate? I understand the first sale doctrine of §109 allows the owner of a copy to distribute their own copy, but it doesn't seem to allow display. To add a few other examples beyond a t-shirt, what about displaying sculptures or other works of art in my yard? If I wanted to publicly display the entire text of a short story in my yard, would that be different (perhaps due to the "nature of the work" fair use factor)?
Yet I publicly wear shirts with copyrighted designs all the time. I'm unclear about this; do you mean T-shirts you have made yourself using copyrighted images or T-shirts you have bought? If the former then it is a prima facie breach and you could be sued by the copyright holder. You would probably not be as it would be impracticable. If the latter then there are 2 possibilities: The manufacturer/distributer/retailer chain all hold valid licences to put the image on a T-shirt and display it in the usual way so there is no breach involved. The manufacturer/distributer/retailer chain does not hold a valid licence in which case there is a breach and the copyright holder would target, say Wall-Mart rather than you. what about displaying ... works of art in my yard? Notwithstanding that it can be viewed from a public space, your yard is not public; therefore this is not public display.
The UK copyright Act has the concept of &quot;fair dealing&quot; which is more restricted that the US concept of &quot;fair use&quot;. For your purposes, Section 30 appears to be applicable: 30 Criticism, review and news reporting. (1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public. (1A) For the purposes of subsection (1) a work has been made available to the public if it has been made available by any means, including— (a) the issue of copies to the public; (b) making the work available by means of an electronic retrieval system; (c) the rental or lending of copies of the work to the public; (d) the performance, exhibition, playing or showing of the work in public; (e) the communication to the public of the work, but in determining generally for the purposes of that subsection whether a work has been made available to the public no account shall be taken of any unauthorised act. For your reviews, you would need to properly attribute the source of the image that you were using and that source must be legitimate. If you can't find a clear legal pathway from the image you have to the actual copyright holder you could be in trouble (e.g. an image from someone else's blog where that image may have been uploaded illegally). Your best bet is to go to the studio concerned and use images from their official public releases with proper attribution.
You are in effect asking if this is a case of Fair use, an important US-specific legal concept in copyright law. Please review this question for an overview of fair use. See also This statement from the US copyright office Deciding whether a use is a fair use is always a fact-driven, case-by-case, process. No one ever knows for sure if a use is a fair use unless that specific use is challenged in court as infringement, and the fair use defense is raised and sustained or not. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission. ("More Information on Fair Use" -US Copyright office) Factors Let's look at the fair-use factors in the case of this photo: Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: The use is apparently for clearly commercial purpose. This tends to weigh against fair use, but does not rule it out. Then the is the question of whether the use is transformative. The background image apparently serves its original decorative purpose. Whether making it part of an ad is transformative might be debated. Nature of the copyrighted work: The graffiti is an artistic and creative work, not a work of non-fiction or news reporting or factual information. This also tends to weigh against fair use. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: It seems that almost all of the work of graffiti, or at least a significant part of it, is being used. This tends to weigh against fair use to some degree. moreover, the work of graffiti is quite prominent in the background of the work, which ,means it makes a significant contribution to the final work, which also weighs against fair use. Effect of the use upon the potential market for or value of the copyrighted work: If the work of graffiti is currently being marketed, the question does not say so, and i would suppose that it isn't. There could be a potential market: the artist could make photos or prints of the work and market them, for example. Even so, this image probably wouldn't affect such a market much. This factor probably inclines towards fair use, but it is hard to say just how a court would asses it. Case law In Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997) A poster of a “church quilt” was used in the background of a television series for 27 seconds. This was held not to be fair use. The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church, and the fact that it was a conventional practice to license such works for use in television programs. This case seems particularly close to the one in the question. In Bill Graham Archives v. Dorling Kindersley Ltd. 448 F.3d 605 (2d Cir. 2006) posters of Grateful Dead concerts were reproduced in a book. This was held to be fair use. The reduced size of the images, and their appearance in the context of a timeline were considered significant. In Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014) A modified photo of a Wisconsin mayor was reproduced on a Tshirt and used to raise money for an event. the photo was posterized, background removed, text added, and a lime green outline featuring the mayor’s smile remained. The resulting image of the mayor, the court stated, “can’t be copyrighted.” Defendants removed so much of the original that, as with the Cheshire Cat, only the smile remains. Defendants started with a low-­resolution version posted on the City’s website, so much of the original’s detail never had a chance to reach the copy; the original’s background is gone; its colors and shading are gone; the expression in Soglin’s eyes can no longer be read; after the posterization (and reproduction by silk-­screening), the effect of the lighting in the original is almost extinguished. What is left, besides a hint of Soglin’s smile, is the outline of his face, which can’t be copyrighted. (I take this to mean that the elements actually copied do not have enough original content to be a copyrightable wqrk.) In Kelly v. Arriba-Soft, 336 F.3d. 811 (9th Cir. 2003) use of thumbnail images in search engine results was held to be fair use. The reduced size and image quality were significant to the court. So was the transformative use of the images to help identify and index the pages. Conclusion This is not a clear-cut case, in my view, but the case for fair use does not seem strong to me. Copyright protection of Unauthorized Graffiti A number of comments and some other answers have raised the question of whether graffiti made without the permission of the owner or tenant of the location, and therefore illegally, are entitled to copyright protection. The first thing to say is that there is nothing in 17 USC (the US copyright law) that conditions copyright protection on the legality of the work, or of its publication. Case law on this precise issue is not easy to find, nor does there seem to be much of it. IPWatchDog's "Preventing a Graffiti Copyright Infringement Lawsuit" (2018) says: Several high-profile companies, American Apparel, Coach, American Eagle Outfitters and H&amp;M who shot advertisements in public spaces, have found themselves inadvertently in the midst of such legal disputes with street artists. Even though an advertiser may have had permission from the property owners, even though the “artwork” was unsanctioned and unsigned or “tagged,” the graffiti artists have come forward after the ads were already in circulation, identified themselves and sought compensation and damages. It goes on to say that: These cases tend to be settled out of court, because regardless of the merit of an infringement claim, they are costly to defend and the unwarranted negative publicity can injure a company’s reputation. ... Also, from a legal standpoint, the question of whether the copyrights of illegally created street art are valid has not yet been determined – so there would be some element of doubt as to how a litigation would be decided. *The Atlantic's article "Can Graffiti Be Copyrighted?" about the case of graffiti artist David Anasagasti's case against American Eagle Outfitters for use of his work (and several other similar suits) quotes Philippa Loengard, assistant director of Columbia Law School’s Kernochan Center for Law, Media, and the Arts as saying: Given what I know of the case, this is one of the most blatant examples of copyright infringement None of the suits mentioned in the story seem to have resulted in a court decision as yet. In Falkner v. General Motors Company, the trial judge held that the art was not "part of" the building and thus the exemption for photos of architectural works under 17 USC 120 does not apply. However it denied plaintiff’s DMCA claim and his claim for punitive damages. The court held that: because the facts in the record tend to establish—if anything—the lack of a relevant connection between the mural and the parking garage, the Court cannot hold as a matter of law that the mural is part of an architectural work under Section 102(a)(8). Thus, it cannot reach the issue of whether Section 120(a) applies to the mural to permit photographs of the mural. In an article in the N.Y.U. Journal of IP &amp; Entertainment Law "Protecting Artistic Vandalism" author Celia Lerman argues that copyright should protect unauthorized, illegal graffiti art. This article notes that: Graffiti pieces increasingly attract the attention of numerous collectors, gallery owners, publishers, filmmakers, and journalists. Pieces from famous graffiti artists have sold for hundreds of thousands of dollars in the art market. Graffiti pieces have even been given as diplomatic gifts. Galleries are seeing record attendance at exhibitions of graffiti works, and publishers have generated a boom of photographic books on graffiti and street art. (citations omitted) The article notes that Tattooed Walls a book by Peter Rosenstein about NYC Graffiti, reproduced images of many works of graffiti without permisison, the author believed that these were fair use because they were posted in public places. Several artist sued, a settlement was agreed to, and the book was withdrawn from publication. The article mentions a suit against Tony Hawk’s Pro Skater 2 Official Strategy Guide, by the author of a work of graffiti which was reproduced. The suit was initially dismissed for lack of copyright registration, but the court said that it “assumed, without deciding, that the work is copyrightable.” When the suit was refiled after registration, a motion to dismiss was denied, and the parties then settled, so there was no court decision on the merits. Other simialtr cases are mentioned. The article goes on to analyze the law and the purposes that copyright law serves, and give reasons why such works should be protected. But none of this cites an actual case where an illegal graffito has been held protected. The Falkner case will not produce such a ruling, because the art in that case was authorized, indeed invited, by the building owner.
Your client is confused about how copyright law works (at least in the United States and virtually every other country I've ever heard about copyright in). If I were guessing, they read something like this from the United States Copyright Office: The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. and figured that because it's a derivative work, the copyright only covers the additions and changes they make, and there's no copyright protection for the original work. This misunderstands the law: the original work still has its own copyright (assuming it hasn't expired), and permission from the holder of the copyright on the original work is required to create that derivative work in the first place*. The copyright on the derivative work is separate—that is, both copyrights exist in parallel. * Some exceptions, such as fair use, exist, but would be unlikely to apply to the situation you describe.
Yes, you may The layout of the board and its appearance are not protected by copyright, because they are not expressions or any other type of copyrightable content. Even if they were (say if some protested art was displayed on the board) you are displaying this for instructional purposes, and not harming any market for the board, so fair use is likely to apply (in the U.S.). The device could be protected by patent, but you are not copying or imitating the board, nor showing anyone how to do so, so that would not apply. You are not selling or advertising the board, nor knock-offs of it, so trademark protection would not apply, even if a protected trademark is visible on th board. Just in case, be sure to make clear that your video is not authorized or endorsed by the maker of the board.
The mall is a privately owned public space At least while it’s open to the public. A photograph of architecture taken from within it would not violate copyright. However, photographs of other things (like art) do not have the public space exemption. Additionally, the owner can limit or restrict photography. This has nothing to do with copyright, just that an owner has the right to control what happens on their property (within legal limits).
The image is almost surely protected by copyright. The model used in the game would probably be a derivative work of the original image. As such, permission from the copyright holder on the original image would be required. In the absence of such permission, the copyright holder could sue for infringement, and have a reasonable chance of winning. Whether such a holder would choose to sue cannot be predicted. It would depend on whether the holder ever learned of the infringement in the first place, whether it could be proven, and the degree of damages that might plausibly be claimed. It would also depend on the holder's attitude toward such circumstances. In addition, the gun makers might claim trademark infringement. This would depend on how recognizable the guns are, and what trademarks the makers have secured protection on. If a logo is visible and recognizable, that would strengthen a claim by the maker. On the conditions described in the question, trademark infringement seems a bit unlikely, but exact details will matter in such a case, so one cannot be confident in any generic answer on that point.
Even if I give credit to the composer, and I will make no profit from the performance, will it still be illegal to use my transcription? This definitely infringes the composer's performance and derivative work rights under the composer's copyright. There is a mandatory right to cover someone else's composition outside of a movie or TV show (roughly speaking) for a statutorily fixed royalty, but the bureaucracy is such that it would be impractical to do here. Whether or not the &quot;fair use&quot; defense applies in this case is a &quot;colorable&quot; argument, but really, when you perform the entire work as written except for transcription, winning a &quot;fair use&quot; defense in a infringement action would be a long shot. The fact that it is somehow connected to an educational activity would be the strongest argument in this case. Also, as noted in a comment, your school may have obtained express permission to cover the work: Your music school may have a license with a PRO (performing rights organization) that covers your song. You might make some inquiries with the administration as to whether this is the case. Radio stations obtain similar licenses to play a large catalog of music without individually obtaining licenses to use each work separately from the author. This said, this kind of activity is often done, despite the fact that it is a copyright infringement, and most of the time, if the performance isn't too widely broadcast, most copyright owners will never pursue copyright infringement claims over something like this and indeed often won't even consider doing so. Still, copyright is an absolute bar to infringing rights without permission, even if there is absolutely no money received for the work and even if there is full attribution of its author. I'm not a great fan of the law as it is, and it is often disregarded, but that is the law. Also, this answer is based upon U.S. law, but there isn't much international variation in this part of copyright law in countries that meaningfully enforce copyright laws in their courts. But, as another answer notes, in some countries the mandatory right to do a cover of songs in the U.S. is much easier bureaucratically, in some other countries: In several countries, there are organizations that deal with the copyright issue globally. That means you pay a certain (quite small) fee to be allowed to perform a piece of music publicly, and the organization deals with the individual right owners. That makes reusing works much simpler.