Q&A: Can I use Art Derived from Someone Else’s Work?

A reddit question from /u/KarateBeck:

Question

In the case of using pictures that are public domain or creative commons – which are drawn (and slightly different than) an original copyrighted work. Is this considered copyright infringement?
As an example, I have a drawing of Homer Simpson. It isn’t an exact duplicate, and a little bit of artistic license was used when the artist drew it. The picture was then released as creative commons. With proper attribution. Is it ok to include this picture in my blog posts?

Response

The Homer drawing could be one of two things: A derivative work (bad for you) or a transformative work (good for you). A derivative work is a modification of a previously copyrighted work. Only the copyright owner has the right to create derivative works or to allow others to do so. A common example is translating a book from English to Spanish.

A transformative work is a subset of the fair use doctrine. It essentially means that you expressed someone else’s work in such a way that it is an entirely new expression of the work [I probably should have said “idea”].

The hard part is knowing which one is which. It’s determined on a case-by-case basis and is context specific. So lots of grey area.

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Leland Faux
Attorney Leland Faux blogs about trademark, copyright, and online business issues at Law of the Brand. You can submit a question by email to thelawofthebrand@gmail.com.

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