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Creating Art from Art: Transformative Fair Use

September 23, 2011

I recently came across the work of an artist, Matthew Cusick, who paints with maps. Rather than use traditional paints, Cusick cuts up maps and pieces them together to create remarkable new images.

Blue Horse, 2011, Matthew Cusick

An artist like Cusick needs to be aware that maps are copyrightable. (See, e.g. here and here). When making a collage, or cutting up another’s work to make something new, an artist needs to be careful.

It wasn’t that long ago Richard Prince was sued for collaging and painting on top of photographs taken by a French photographer. The court found that Prince’s use was not sufficiently transformative to be a fair use. Prince is still appealing.

Original, Left. Prince's Work, Right. Via ARTINFO

In Cusick’s case, there is probably no cause for panic. The maps appear to be somewhat old. It’s possible their copyrights have expired, and that they are now in the public domain.

If not, Cusick’s use of the maps is most likely a “transformative fair use” anyway. To determine whether a use is fair, courts generally look at:

  1. The purpose and character of the use, including whether it is commercial or nonprofit;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

Some uses are so “transformative” that they are implicitly fair. The goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. (see here). Whether the work has been sufficiently changed depends on whether the second work adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message. Here, Cusick’s works are vastly different from the maps from which they are constructed. There is no doubt that Cusick’s work adds something completely new – an image with emotion.

Geronimo, 2007, Matthew Cusick

Cusick uses small sections of maps. While he might use an entire map in the construction of a piece of art, you would never know it. There is no impact on the potential market for the maps as the new works are useless as maps.

While Cusick is probably safe, visual artists, especially those who focus in collage or transformative art, need to be aware of the copyrights on the materials they use.

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2 Comments leave one →
  1. April 11, 2015 7:50 pm

    You may want to update this article to note that, on appeal, a federal circuit court found that 25 of the 30 instances of Prince’s work cited in the lawsuit was sufficiently transformative (the standard being “to a reasonable person”) to constitute fair use. http://www.artinamericamagazine.com/news-features/news/landmark-copyright-lawsuit-cariou-v-prince-is-settled/

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