Tuesday, April 20, 2010

Bird plus plant does not equal copyright fraud

Dear Rich: If I use someone's photographs from the Internet or magazine and combine say a bird from one and a plant from another is that copyright fraud? No, but it might be copyright infringement. 
Copyright fraud. Fraud refers to intentional misstatements or concealment of facts. It's usually not used to describe the unauthorized use of someone's work (copyright infringement). There are several references to fraudulent activities regarding copyright notices in Section 506 of the Copyright Act. There's also "fraud on the Copyright Office" which occurs when the applicant for a copyright registration intentionally misstates or conceals information that would cause the application to be rejected. When discovered, it usually results in cancellation of the application. And the term "copyfraud" is used to refer to people who take public domain material and try to get proprietary with it. There's also a subset of activities that are sometimes categorized as misuse of copyright that might be fraudulent --  such as using copyright to suppress free speech. None of this seems to apply to your case and apparently we're just running off at the mouth in an attempt to fill up our blog.
Right, you had a question. We don't know if you have infringed but it sounds like a derivative work. If the elements -- the bird and the plant -- can stand alone as separately copyrightable works, it is more likely that it is infringement.
P.S. Feel free to use the bird and the plant in the photo above, taken by the always obliging Dear Rich Staff.