Q: I've noticed a lot of libraries have book characters painted on their walls. Is this a copyright infringement?

A: Copies of illustrations from children’s books may certainly be copyright infringements. The characters are works of art, so they can be protected by copyright: they are creative, original, and fixed in a tangible form. It is up to the owner of the copyright to control where the works are reproduced (or in the case of a mural, most likely adapted). By reproducing the work on the wall of the library (or cafeteria, or hallway), the images are used for decoration. That use greatly reduces the fair use argument that is likely to be advanced in defense of the use.

A work is presumed to be under complete control of the copyright owner unless the person using the image can advance a fair use defense to infringement. Note that fair use is not a right, it is a defense, meaning that to claim fair use you admit you have infringed the work being used. There are four factors in a fair use defense. You don’t need to succeed on all four factors, but you should have a great argument on at least two, or a good argument on three or more.

The first factor is the purpose and character of the use. The statute gives us examples of some types of use that are generally (but not always) considered indicative of a fair use, such as criticism, commentary, news reporting, and non-profit education. But as I said, you need a great argument, and just putting something in a school as decoration doesn’t qualify the use as educational. To be considered educational, there needs to be some sort of objective lesson involved, something like teaching a particular story in a class, not just an image on in the hall. One aspect of this factor, not written in the law but evolving from court decisions, is whether the use is transformative. Transformativeness means the “value added” to a work by the use. When a use is a rote copying, there is not much of value that is added, at least not compared to a use in a parody or satire.

The second factor is the nature of the copyrighted work. Works that are creative are highly protected. An illustration is a work of art, therefore any unlicensed use will fail on this factor.

The third factor is the amount of the work used. The more of a work you use, the less likely the use is fair. Note that the “essence” of a work is considered to be all of the work, so if you are using Mickey Mouse’s face rather than his whole body, you might as well have used all of him. Still, there are ample examples of works of art being used in their entirety and the use being found to be fair, though mostly in parody or in low-resolution images.

The fourth factor is the effect of the use on the potential market for or value of the work. That’s a subjective standard, by any measure. One court explained that if the new work could replace the original, there is an effect on the market. It’s hard to say if a mural would replace the original artwork; probably not an entire book, but perhaps that one illustration. Even if this factor favored fair use, all four factors must be considered. Is there a good argument for three of the factors, or a great argument for two?

In addition to the copyright considerations, some of the characters depicted in children’s book illustrations are trademarks, such as Donald Duck or Mickey Mouse. If using those images would result in someone thinking there was a relationship or partnership between your school/library and Disney, there could arguably be a trademark infringement.

What’s an alternative? Why use someone else’s rendition of classic characters of literature? Create your own Snow White, or Three Pigs, or other public domain characters rather than appropriating the works of prior illustrators. Those are new works whose copyright will belong to the school!

This column is designed to provide accurate and authoritative information regarding application of copyright law in schools. Nothing in this column is intended to constitute legal advice, and nothing herein should be considered legal advice. If legal advice is required, the reader should consult a licensed attorney in his or her own state. Neither ABC-CLIO, LLC, nor the author makes any warranties or representations concerning the information contained in this column or the use to which it is put.