Cartoon Image

[Anxious]

Background:

I’ve used a 2D cartoon animal image from Pixabay to create a YouTube video. It’s the main character and is used to teach kids reading and vocabulary. I’ve given it a name, movement, character and placed it in different contexts e.g. in space.
A Google reverse image search only showed the Pixabay version (Creative Commons 0). I learned about TinEye much later and discovered a water colour version of the character on 2-3 clip art sites posted years before the Pixabay version. The original owner of the watercolour isn’t shown. The licence on these sites is “Free for Personal Use”. Both images are practically the same. The Pixabay version is drawn using a computer instead of paint and uses slightly different colouring. It’s drawn in the style of the artist’s other work. Assuming the original watercolour character wasn’t created by the Pixabay artist:
1) Can I use the Pixabay cartoon image in the way I’ve described? Is it “transformative” enough to be considered “fair use” and not infringe on the rights of the original watercolour clipart creator?
2) Would the fact that it is used to teach kids a language be considered “educational” fair use?
3) Assuming the “personal use” licenses are valid, can the image be used in a YouTube video that isn’t monetized?
4) If the Pixabay artist’s cartoon is a derivative, can they put it on Pixabay with a Creative Commons Zero license? Would I be liable for copyright infringement for using their image if they didn’t have permission from the original copyright holder to make the derivative?
5) What happens if I can’t find the original copyright holder? Should I refrain from using the Pixabay image?

Thank you so much for your help.

[AndyJ]

Hi Anxious,

You refer to fair use in your questions. This is an American doctrine and so if you are American or based in the USA, it would be the appropriate legal framework to use especially as Youtube also applies Amercian copyright law to its usage policy. However if you are based in the UK or the European Union we will need to look at the law which applies there as it is much more restrictive.

Question one. Your use certainly sounds as if it might be transformative enough not to infringe the original if we apply the Fair Use doctrine. Fair use is assessed against 4 factors. These are set out in section107 of the US Copyright Act, so I won't repeat them here. This Wikipedia article looks at the 4 factors in more detail. The only factor which might seem to count against you is number 3, the amount of the original work which you have re-used.
However if we apply UK/EU law the answer is probably that this does not fall within the fair dealing rules. These mainly cover activities such as research, criticism, quotation, caricature and pastiche. Although there is an exception for certain educational uses, this envisages using the original work as is, rather than for making derivatives. It is designed to allow the study of significant works of music, art or literature etc without infringing the work. There is no specific exception for transforming the original. Indeed, UK copyright law explicitly says that making a 3D version of a 2D original would infringe the original (see section 17(3) of the Copyright Designs and Patents Act 1988(CDPA)).

Question 2. Under the US Fair Use I think the educational nature of you videos is likely to swing things in your favour in relation to factor 1. However as I have mentioned I don't think it will be sufficient in the case of UK fair dealing or EU law. Under UK law, the provisions for educational fair dealing are set out in sections 32 and 36 CDPA. Section 32 says this:

32 Illustration for instruction

(1) Fair dealing with a work for the sole purpose of illustration for instruction does not infringe copyright in the work provided that the dealing is—

(a) for a non-commercial purpose,

(b) by a person giving or receiving instruction (or preparing for giving or receiving instruction), and

(c) accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).

(2) For the purposes of subsection (1), “giving or receiving instruction” includes setting examination questions, communicating the questions to pupils and answering the questions.

(3) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable

Note that it is requirement that you acknowledge the source material. Clearly here that would seem to mean the original rather than the Pixabay image. This also fits with the Pixabay image's CC0 licence which does not require attribution. Section 36 deals with the use of extracts from a work, and as well as requiring the same acknowledgement of the original as in s. 32, it stipulates that no more 5% of the original work may be copied. Clearly it would not cover your use. This section is primarily intended for use with books, plays and music rather than artistic works. EU law on educational use is contained in Article 5(3)(a) of the Information Society Directive which says that the use of copyright material is permissible for the following purpose:

(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;

This is further qualified by sub-section 5 of Article 5, which says

5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.

This is obviously relevant to the terms under which the original work was (we assume) issued, which still leave room for the original artist to exploit his work commercially if he chooses to.

Question 3. Yes, I think that personal use can include use on Youtube. The distinction is usually between personal use and commercial use, rather than say (as the UK law words it) private study which is a much narrower category than personal use. There have been several court cases in which it was found that the fact that Youtube places adverts before or during a video uploaded by a user does not amount to commercial use of the channel by the user provided that the user derives no monetary benefit from this practice. This would apply both in the USA (factors 1 & 4) and UK/EU.

Question 4. Since it sounds as if the original artist didn't apply his own specific licence to his work which stipulated whether or not derivatives could be made from it, the Pixabay image would appear to be a legitimate use of that original and the Pixabay artist was entitled to use a Creative Commons licence for his work. However given the limitation presumably applied by the original artist via the site's terms, the CC licence should have maintained the personal use stipulation by using the Non-Commercial tag rather than CC0. Assuming that your work is based more on the Pixabay version than on the original, if it turns out that the Pixabay image is an infringement of the original, then the CC licence becomes invalid and so you work would lose its legitimacy under that CC licence. However since your image is arguably also a derivative version to the original, provided that your use remains within the terms set by the original artist (which it appears it does), then it seems highly unlikely that you would face a claim for infringement. This, of course, assumes that the work I have referred to as the 'original' is not in fact itself based on a earlier work.

Question 5. It would certainly be preferable to try to locate the original artist if that is possible, in order to clarify the terms associated with using his image. However, if you are unable to do that, and given that the Pixabay artist's work has not been taken down, it seems reasonable to rely of the general 'free for personal use' term from the site hosting the original. However, you do need to put a CC0 licence on your work to comply with the licence provied by the Pixabay artist, even if he, arguably, used the incorrect licence*.

What I have set out above is the legal postion as I see it. However if you remain anxious about the situation, especially if you are based outside the USA and wouldn't qualify under the Fair Use doctrine, then you are right to remain cautious. It would seem that the key to the issue is locating the original artist and confirming that he is happy with your project before going much further.


* In this instance I think the CC-BY-NC-SA licence would have been more appropriate.

[Anxious]

Thank you very much for your response.