Fair Use for Images, Part 3: Use Cases

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From the course by Duke University

Copyright for Multimedia

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Duke University

Copyright for Multimedia

215 ratings

Copyright questions about different formats (data, images, music and video) can be especially difficult. Sometimes the law specifically distinguishes between these different formats, and in most cases there are media-specific considerations that impact a copyright analysis. In this course we will look at four different media, paying special attention to the unique issues for each one and the kinds of information that is important when making copyright decisions for each type of material. We will work through fair use issues for each multimedia format, look at format-specific exceptions in the law, and consider unique issues for seeking permission for film, music, images and data. At the end of this course, participants will have a deeper understanding of how to apply our framework for making copyright decisions, and will be more comfortable with assessing multimedia issues. They will have gained more and more diverse experience for considering fair use.

From the lesson

Images

Those who create or use works of visual arts benefit from an understanding copyright protections and exemptions. Topics covered in this module include which works of visual arts get copyright protection, what special rights are afforded artists under the Visual Artists Rights Act (VARA), how to apply the TEACH Act and fair use to images, and what steps to take if you need to seek permission. Finally, some attention will be given to social media, implied licenses that can arise when posting and using images, and privacy.

Fair Use for Images, Part 16:52

Fair Use for Images, Part 2: Transformative Fair Use4:19

Fair Use for Images, Part 3: Use Cases7:32

Meet the Instructors

Kevin Smith, M.L.S., J.D.
Former Director, Copyright and Scholarly Communication
Duke University Libraries
Lisa A. Macklin, J.D.,M.L.S.
Director, Scholarly Communications Office
Robert W. Woodruff Library, Emory University
Anne Gilliland, JD, MLS
Scholarly Communications Officer
University Libraries, The University of North Carolina at Chapel Hill

Hello everyone.

So right now we're going to look at how courts have analyzed fair use.

This can be really helpful and

instructive in determining whether your own use is fair use.

So let's review some cases involving visual art and images.

First case we're gonna talk about is Kelly versus Arriba Soft.

This case involves a search engine which used the practice of in-lining,

making thumbnails that a user who is searching could

view in order to decide what webpage to visit.

And the courts found that this did not undermine the potential market for

the sale or licensing of the images.

Some of the important factors in deciding that were that the thumbnails were smaller

and much poorer quality than the original photos.

One would not want to substitute one of those thumbnails for the original.

And it also helped public access to the images as well.

Another fair use case where it was found that

a reproduction of images was not infringement is the Grateful Dead case,

the Bill Graham Archives versus Dorling Kindersly.

And in this case, the Dorling Kindersly Publishing Company

reproduced Grateful Dead posters that had once advertised their concerts.

They reproduced the posters in a book and

used the posters to illustrate different milestones in the history of the band.

This was found to be a fair use.

The Second Circuit focused on the facts that the posters were thumbnail size,

again very small, and reproduced within the context of a timeline.

It was a new way of using the posters.

They were no longer advertising the concerts for the Dead,

like they had in their original lives, but now had a different purpose

where it could be used without permission.

>> And that's a great example of a transformative fair use that we've been

talking about.

Another example of transformative fair use is the case of Cariou v Prince,

which involved appropriation art, which is a very hot topic in a lot of ways.

In this case, the painter, Richard Prince, created a collage,

he created a series of works of art that were mostly collages

using photographs from a photographer's book, Patrick Cariou's book.

He used about 28 of the photos in 29 paintings that he created.

In some instances, he used the full photographs.

When, in other cases, he used parts of them, and mixed them up so

that only the main subject of the photo was used.

This was found to be a fair use.

The Second Circuit thought that the important factors were that

in order to qualify as a fair use, Prince did not have to comment on the original.

And this is interesting, because in the past we've usually seen parody cases

where you're commenting on the original work.

In this case, the Second Circuit said that it was so

transformative that it really didn't matter whether Mr. Prince

could articulate a kind of comment that he was making about the original work.

He just liked the pictures and wanted to do something different with them.

The court appeals concluded that 25 of his artworks qualified as fair use.

And they remanded the case to determine the status of the remaining five, which is

interesting because it does show that they were doing a careful analysis and

that sometimes they thought,

I think mostly they thought in a few cases the amount used was more than necessary.

So it does show the court working through this transformative fair use analysis.

>> And one thing that's really interesting about this case, I think,

is that, many times, artists can't articulate their comments.

If they could, they would have written something instead of using images.

[LAUGH] >> That's a good point.

>> And so that is one of the many fascinating things about this case.

>> Yeah. >> Yeah.

As you said, Kevin, appropriation art is a hot topic, and

I think will continue to be a hot topic for a while.

>> I think we're going to see more of these cases.

>> I also think it's interesting to note that even the appeals court,

which are seasoned federal judges, in five instances of 30,

were not quite certain themselves, whether or not something transformative fair use,

and remanded it back to the original court.

>> I disagreed, actually, in the opinion about which-

>> They struggled, yeah.

>> They really struggled, that's right.

>> So I'd like to show that this is an area that doesn't have hard,

fast rules and that flexibility is a good thing but it can be difficult

at times to really determine for yourself if a use is transformative.

By using cases as guidelines can be very helpful.

>> Right.

>> So while transformative fair use is very powerful and

has been found in a number of cases, there are some exceptions.

One of those that's worth noting is Gaylord V The United States,

a case from 2010 where the U.S. Postal Service made a stamp out of a picture

of the Korean War Memorial, which is a sculpture created by a sculptor.

They didn't get permission for that use of the sculpture, but

they felt that their use was a fair use.

And unfortunately the U.S.

Court of Appeals for the Federal Circuit disagreed with them.

And they found that simply taking a sculpture which is three dimensional, and

making it two dimensional in the case of a stamp,

was not enough transformation for that to really be considered a fair use.

Even though that was creative, there was a photographer who

basically set up the lighting, etc for taking their photo of the sculpture.

They still needed the sculptor's permission to use the image of that

sculpture in the postage stamp that they were selling.

So- >> You know what else I think is

interesting about this, is it's a reminder that the chances are it was the government

itself that commissioned the sculpture for the Korean War Memorial.

But simply paying for it, simply commissioning a work, and we know this

from earlier cases, doesn't give the government the copyright in the sculpture.

The sculptor still owned that right and should have been consulted,

according to the federal circuit, for permission before the stamp was made.

>> Yes. Well, with U.S. postal service, they,

while affiliated with the government, are totally separate entities at this point.

>> That's right.

>> So that also complicates things as well somewhat.

>> But these relationships are sometimes very important in figuring out the status

of a work and of a secondary work.

>> Right.

>> And so we'll also talk in another lecture about the rights that artists have

under specific exception and copyright law, or

specific granting of rights in copyright law.

And yes, very much coming in to play here as well.

>> Right. >> So thank you for

watching and listening.

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