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Alfred Steiner is an attorney at Morrison & Foerster LLP, specializing in transactions involving technology and intellectual property. Mr. Steiner also is an artist whose work has appeared in shows at The Drawing Center, Exit Art, the Miami University Art Museum, Gallery Poulsen in Copenhagen, Joshua Liner Gallery and Claire Oliver Gallery in New York, 101/Exhibit in Miami, and Guerrero Gallery in San Francisco. He can be reached at firstname.lastname@example.org. The views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to, Morrison & Foerster LLP.
I was recently talking with an acquaintance, who happens to be a copyright scholar, about a cease and desist letter that an artist had received from a publisher. The publisher objected to the artist’s display and sale of works that collaged cutouts from a comic book with new material painted by the artist. I worried that if you took the copyright owner’s claims seriously, any collage1 incorporating copyrighted material would be prima facie copyright infringement, even a collage made of pictures cut from a copy of The New York Times. My acquaintance did not even blink at this observation, but seemed to believe it was a perfectly reasonable result.2 My jaw slackened. How could it be that whenever people include a single shred of an authorized copy in a unique collage, they subject themselves to claims for copyright infringement that could result in $150,000 in statutory damages3 and millions of dollars in plaintiff’s attorney’s fees,4 not to mention their own legal defense costs? Claims that, even if not meritorious, may be difficult or impossible to dispose of without a full trial?