The Wall Street Journal had a very interesting article last week on the fine line between artistic expression and copyright infringement.  The issue arises when an artist borrows the work of another to create something new.  The question is whether such use is truly “transformative” — and, therefore, protected under copyright law and the First Amendment — or plain old copyright infringement.  The question is more difficult to answer than one might think.  From the article:

Other artists have stumbled into this gray area of the law. “It’s meant to be a gray area, because the copyright law is designed to be flexible,” said John Koegel, a lawyer who successfully represented artist Jeff Koons in an infringement lawsuit by a commercial photographer, Andrea Blanch, in 2005. “The law states that the use of a copyrighted image is transformative based on the ordinary lay observer’s sense of if the new work is different and how different it is. It is very much of a visual thing, and there is no bright line that artists can go by.”

–Matt

A Harry Potter fan creates a “Lexicon” (a type of encyclopedia or companion book) for the famous literary series by J.K. Rowling.  Is such a work a “transformative” new work, and therefore a “fair use” of the copyrighted series, or is it a “derivative” work, and therefore under the exclusive control of the copyright owner?  In the case of the Harry Potter Lexicon, a District Court in New York ruled that the work contained too much copying and not enough transformation to be a “fair use” of Rowling’s books.  An appeal is pending.  A comprehensive look at the Court’s opinion can be found here:

http://www.groklaw.net/article.php?story=20080909014304275

–Matt