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I'm wondering about the possible use of images generated with ASCII characters based on famous but possibly copyrighted photographs or images.

Could this new aesthetics indicate transformativeness, and thus possibly fall under fair use, or would this mostly be a derivative work for which you need permission from the copyright owner?

There is only one other related post I could find on this issue (Can I used an ASCII generated version of a copyrighted image in my game?). The only answer point towards infringement. Would you agree?

  • Transformativeness is not one of the four factors for determining fair use. Look for "four factors" fair use to find out more. You need to consider all the factors, not just how much of the copyrighted work you are using. – Brandin Nov 5 '17 at 13:36
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There is certainly a solid argument that it would be an infringing derivative work.

But, ultimately, it isn't a question that can be answered in the abstract. A jury would have to look at the alleged source and at the new work and compare them in light of the legal standards provided by the judge with input from counsel for both sides.

In most cases, it would be a mixed question of law and fact that could easily come out either way with any given jury on any given day, and is well within the gray area. Some works might be more transformative than others for a variety of reasons like color, size, the style of the original work, etc.

Also, keep in mind that the inquiry in a fair use defense is heavily dependent upon the purpose of the new work and the way that it is used, the nature of the work itself is only a small part of the inquiry.

An ASCII transformation in the context of an editorial cartoon might very well pass muster, while a similar ASCII transformation hung in an art gallery for sale in isolation with no real "message" might not.

ASCII transformations by students in a graphic design program in an art college might pass muster while a professional artist distributing them in mass produced fashion through a vendor selling them in Times Square to tourists might not.

Ultimately, while the law rarely comes out and says so in so many words, copyright infringement is about commercially appropriating the economic value associated with the original work for primarily commercial reasons, and the context informs the extent to whether that is happening or not. If it is not happening, a fair use defense is stronger, if it is happening, a fair use defense is weaker.

The law, in general especially in common law jurisdictions like the U.S. and England, is incredibly context and fact specific, and copyright law questions of derivative work and fair use are circumstances where this is particularly true.

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    Yes, a new "representation" of the original work (using ASCII character art) is most likely a "derivative work" from which the original work can be faithfully reproduced, or at least recognized. On another tack, might not the art-student scenario also benefit from the statutory exemption for certain types of classroom performance or display of copies (e.g., 17 USC §110), whether or not it's also "fair use" (17 USC § 107). – Upnorth Nov 4 '17 at 6:48
  • Thank you for your answer. I think I'll stick to public domain images to avoid bad surprises regarding copyright infringement because I now agree that it does seem like one. – Oliver Nov 6 '17 at 15:57
  • @Upnorth Certainly. It's sloppy thinking, but I tend to think of a Section 110 defense as just another form of fair use. – ohwilleke Nov 6 '17 at 16:25
  • @ohwilleke My thinking is that "fair use" criteria are often much more subjective/gray/balancing act, whereas a §110 defense may be easier to prove, as a matter of law. I'm no litigator, so I would ultimately defer to those more qualified, but I'm pretty sure the accused would rather have numerous defenses to recite in the reply. – Upnorth Nov 7 '17 at 16:56
  • @Upnorth Absolutely. – ohwilleke Nov 7 '17 at 19:41

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