The “20%” Copyright Rule You Might of Heard About

Disclaimer: I am not a lawyer, and this article should not be considered legal advice. For specific legal guidance on copyright and fair use laws, consult a qualified attorney.

The world of art and copyright law can be complex. Artists often seek ways to understand how to navigate this intricate terrain. One concept that has gained some attention, although it lacks formal legal standing, is the “20% rule.” In this blog post, we’ll delve into what the “20% rule” entails, its origins, and its limitations.

Read my other blogs about copyright:

Understanding the “20% Rule”

It is a notion that suggests, if you transform an existing work by a certain percentage. The new work may be less likely to infringe the original copyright. And this may potentially reduce the risk of copyright infringement claims.

Origins and Application

It’s important to note that the “20% rule” is not a formal or universally recognised legal doctrine. Instead, it’s a rough guideline that some artists, educators, and individuals in the creative community have discussed informally. It doesn’t have a specific legal basis or precedent.

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The idea behind this guideline is to emphasise the transformative nature of an artwork. Transformation can be a crucial factor in copyright law. Particularly in countries like the United States, where “fair use” relies heavily on the transformative use of copyrighted materials.

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Fair Use and Transformative Use

In the United States, the fair use doctrine allows for the use of copyrighted material under certain circumstances. This might be criticism, commentary, news reporting, teaching, scholarship, or research. A key element in determining fair use is whether the new work transforms the original material by adding new meaning, context, or creative expression.

However, it’s crucial to emphasise that the determination of fair use is highly fact-specific and context-dependent. There is no fixed percentage or mathematical formula, such as the “20% rule,” that automatically qualifies a use as fair. Courts consider a range of factors including:

  • The purpose and character of the use the nature of the copyrighted work.
  • The amount and substantiality of the portion used.
  • The effect on the potential market for the original work.

Limitations and Caution

While the concept of the “20% rule” may offer some guidance, it has significant limitations:

  1. It is Not a Legal Doctrine: It’s important to remember that the “20% rule” is not a legally recognised principle. Relying solely on this guideline may not provide legal protection in copyright disputes.
  2. Case-by-Case Evaluation: Copyright infringement cases are assessed individually, considering various factors. The percentage of transformation alone does not determine whether a use is infringing or not.
  3. Jurisdictional Variations: Copyright laws and the application of fair use or fair dealing principles can vary from one country to another. What might be considered fair use in the United States may not apply in the same way elsewhere.

If you have concerns about using copyrighted materials in your art or creative work, it’s advisable to consult with a qualified intellectual property attorney. They can provide guidance tailored to your specific situation, legal jurisdiction, and the relevant copyright laws.

If you’re in Australia and would like to get a better understanding…



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