Here’s the disclaimer.This has been offered for your information to help you decide whether you need advice from a copyright lawyer.So read and heed.But if a non-lawyer tries to apply this as legal advice, there is a huge risk that the information will not be applied correctly.One fact omitted or added can change the legal outcome.
It may NOT be okay to download photographs from another source to publish.The “fair use” doctrine does not always protect, even for a news use.
Are your art departments rescued by “fair use”?The answer is only “maybe.” When you've finished reading this segment, go on to read the next segment on "Derivative Works" to get a more complete picture on the answer to this question.
If a segment of a work is copied and disseminated, relied upon in research, used in teaching and reported in news, in spite of the copyright monopoly, the copier may be protected by the “fair use doctrine,” recognized world-wide.These are known as specially favored uses, where copying is allowed to a certain highly controlled degree.“Fair use” just isn’t as loose as many (wishfully) think it is.It certainly does not provide carte blanche to copy just because you’ll be using it for a news report.
Many people think it is okay to make easy changes to someone else’s work and escape copyright infringement.That is not so.The artist or photographer retains the rights to create derivative works.The following list shows examples of derivative works and most of these examples are taken from court decisions.If a third person does these things, it can be an infringement on copyright. These types of copying are not a fair use:
Taking a picture of a picture, in order to publish the original
Cropping a picture (or text) simply to copy its essence, the most important part
Taking a picture (or text) from an infringer, unless you've been totally dupped
It is also unwise to rely on oral permission from a copyright owner, simply because it is so hard to prove later. Oral permission for a license to use, is legal, but elusive.
For a specially favored news use, the degree of copying allowed depends upon a balancing test that does not allow for easy predictions.In addition to the specially favored uses, there are four factors to be weighed and balanced by the court.
the nature of the copyrighted work: fanciful or factual?
the nature and character of the use, especially whether it is commercial;
the amount taken, measured both by gist and portion;
the market value or impact on sales of the copyrighted works.
Some say the fourth factor, impact on market value, is the strongest predictive factor.If the copier is just trying to avoid paying fees, the copier is very likely to lose the copyright infringement lawsuit.But when there is a “transformative” use of a creative original, it may be so different from the original, no copyright claim can survive.
The best example of a transformative use is the on-line catalog.
Google Images is an example of a transformative use, meaning that the function of the thumbnail copy is changed from use of the original picture. Google Images then links to copyrighted photographs or art and functions as a catalog, not the original purpose of the photo.Or, converting a famous news photo to montage design, has a different function from the original.If the use is sufficiently transformative, the fair use defense is more likely to work. Using a copy in criticism or scholarly work is likely to be transformative, or writing a parody of the original, so long as the parody contains significant creative, original work.
Please take note that courts have not blessed all news indices. The Washington Post and the Los Angeles Times, won their copyright infringement claim against Free Republic when it copied all or most of their stories and posted the stories for comment on its own web site. Free Republic argued that the copies made it easier for readers to find the articles, which was no doubt true, but the articles weren’t erased from the copyright owners’ web sites, they were merely moved into archives where the owners charged for access to older articles. Thus there was interference with the market for older stories. L.A.Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669 (D. Cal. 2000).
Notice this also. The court will consider whether the parties come to the court with “clean hands” as if this were an equity case.For example, did the copier at least try to get permission?Did the copier seekadvice from copyright lawyer?Was there good faith behind the copying or was it a blatant attempt to get away with something? This is one place where professional fairness and integrity in your behavior counts heavily - even to the point of winning or losing the copyright infringement lawsuit.
Fair Use