By Robert Cosgrove and Lauren Berenbaum

In today’s art market, artists rely on social media platforms, such as Facebook and Instagram, to share their work, advertise upcoming exhibits, and market themselves to a wider audience.  While social media promotes accessibility and sharing, it also has the potential of putting collectors in some precarious situations.  Assume, for example, you recently purchased a print by an up-and-coming photographer.  While it fits perfectly in your foyer, you primarily purchased the print as an investment, with the hope the photographer’s acclaim soars so you can re-sell the piece for a profit down the line. One morning, as you are drinking coffee and leisurely scrolling through Facebook, you come across a post from an art gallery nearby. The picture looks familiar – you zoom in closer and notice it looks nearly identical to the photograph you recently purchased. You think to yourself, “I thought I owned the only copy?” 

You do some digging, and to your dismay, learn the supposedly “original print” is a staged copy of another photographer’s work.  Even worse, the other photographer recently commenced a lawsuit against the potentially infringing photographer for misappropriation in violation of copyright law.  As you purchased the photograph as an investment, you are justifiably concerned.

What does this mean for you?
The desire to protect artists’ originality and vision is deeply rooted in our society.  Accordingly, copyright laws exist to ensure artists can maintain control over the distribution of their original work.  Nevertheless, with the increased use of social media platforms, the legal landscape of copyright law is shifting: courts can no longer ignore the impact of social media on artistic expression.  

Now, not every use of another’s copyrighted work constitutes a violation of copyright law.  However, reselling misappropriated art or posting a picture of misappropriated art on Instagram or Facebook may constitute copyright infringement.

One noteworthy defense to allegations of copyright infringement is known as the “fair use” doctrine.  Section 107 of the Copyright Act of 1976 provides, “the fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching… scholarship, or research, is not an infringement of copyright.” The “fair use” doctrine requires courts to conduct a fact specific inquiry by considering four non-exclusive factors:

  1. Purpose and character of the use
  2. Nature of the copyrighted work
  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. Effect of the use upon the potential market for or value of the copyrighted work

From the perspective of an art collector, the fourth factor is of significant concern.  In fact, the fourth factor seems to highlight the connection between a piece’s resale value and “fair use.” In 2013, the Second Circuit stated the inquiry into the fourth factor should focus on whether an artist’s use of the copyrighted work usurps the market for the original work or the market for any derivative works the original artist “would in general develop or license others to develop.” See Cariou v. Prince, 714 F.3d 694, 708-09 (2d Cir. 2013).  Specifically, the Court in Cariou held usurpation occurs in cases where the potential “infringer’s target audience and nature of the infringing content is identical to the original.”  Id. at 709.  The inquiry hinges on whether the potentially infringing work serves as a substitute for the original work.  As copyright is designed to protect creativity and market value, the fourth factor weighs heavily on a court’s assessment of “fair use.”

Therefore, if you decide to resell the print you recently purchased, you may be exposed to allegations of copyright infringement.  If a court ultimately holds you infringed upon the artist’s copyrighted work by selling the print, you are liable for either: (1) the copyright owner’s actual damages and any additional profits you gained by selling the work; or (2) statutory damages.  17 U.S.C. § 504.  In addition, the artist may seek attorneys’ fees and costs.  17 U.S.C. § 505. What may initially seem like a smart investment or an innocent post to Instagram, may wind up causing severe financial detriment and years of litigation.  Regardless of whether you are found in violation of any copyright law though, the value of the art may be undesirably tainted.   Practically speaking, no matter the demand for an artist’s work, any allegation of copyright infringement negatively impacts the ability to resell the artwork – the market shrinks and the artwork’s resale value plummets. 

Copyright law should not be viewed as a barrier to the art world, as it is a mechanism to promote creativity and ingenuity and protect the market value of art.  Nonetheless, with art more accessible than ever, it is increasingly important to be cognizant of copyright infringement claims and the legal ramifications of infringing on someone’s copyright.  Be careful when posting copies of copyrighted art on social media and be mindful that an artist’s use of another’s image may not constitute “fair use” as a matter of law.  And be sure to keep Pablo Picasso’s admonition to heart – “the people who make art their business are mostly imposters.”  

About the Authors
Robert Cosgrove is the managing partner of Wade Clark Mulcahy (wcmlaw.com), Philadelphia office who regularly litigates fine art disputes.  Lauren Berenbaum is an attorney in Wade Clark Mulcahy, Philadelphia office.

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