Legal Question in Intellectual Property in California

Re: Use of images

No. First, altering someone else's work creates a derivative work, which is one of the exclusive rights a copyright owner holds in a work. Creating a derivative work without permission is itself copyright infringement.

Second, copyright infringement is determined on a case-by-case basis and determinations take into account the total circumstances. While there may be precedents and guidelines judges use in deciding these cases, there is no bright-line rule that says a certain percentage of similarity is or is not infringement.

This reply is for general information only, does not constitute legal advice, and does not create an attorney-client relationship.

Re: Use of images

Not only is it false, but altering a copyrighted image is itself infringement of the copyright. It is called a "derivative work."

Re: Use of images

No it is not true.

In truth, it's not the differences between two works that counts. . .it's the similarities.

When a work bears a substantial similarity such that it represents an unauthorized use or taking of copyrighted material, an infringement action will likely be validly supported. In other words, merely changing a few components even 50% or more, will not protect against infringement if the artist of the new work is building on the foundational work of another - by copying their work without permission.

The 98% rule, the fifteen percent rule, and the seven significant changes rule are all urban myths that pop up online, but they don't teach in law school.

When an Artist legally alters an existing work of art, (e.g., by painting a mustache on the Mona Lisa) the Artist does not claim a copyright to the underlying work, but instead, properly disclaims any such copyright and thereby obtains a copyright only in the DERIVATIVE WORK.

Thus, the Artist may claim a copyright only in the changes (and the resulting expressive impact of such changed work).

In his painting "Stars & Stripes" American Artist Jasper Johns does not obtain rights to the Old Glory design sewn by Betsy Ross, but rather only may copyright the expressive aspects of his representation of the flag on canvas.

His resulting "derivative work" does not protect the subject matter of the flag, only his own creative expression contained in his unique representation.

Indeed, to obtain a legal copyright himsel, the newcomer must disclaim all credit for the underlying work.

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Anderson & Shippey - WE PROTECT IMAGINATION

Re: Use of images

That is not a true restatement of the law. While in practice that percentage may hold true for a large number of copyrighted images, the law for infringement is based primarily upon a test of "substantial similarity." In other words, it is possible to have infringed a copyrighted work even if only a small portion (even 1%) of the overall image was taken. The key is whether the heart of the image was misappropriated, which for certain works, can be a very small percentage of the overall work. For example, re-broadcasting the key plays of a televised championship sporting event without permission could very likely be deemed infringing even if that re-broadcast was only a small percentage of the original overall broadcast. (This hypothetical assumes that the re-broadcast is not done by a news organization or some other entity that would be protected under the "fair use" doctrine).

So, you can use this estimate as a "rough" basis for determining infringement liability, but you must know that it will not hold true under all circumstances. Indeed, as a general rule, you really should avoid copying another's copyrighted material entirely to avoid potential copyright infringement liability.