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Guest Post: Fair Use and Copyright

February 8, 2012

Armed with Knowledge: Understanding Fair Use

By Guest Blogger: Sun At Night

Any artist can discover that their visual has been used without their permission or license. This can happen at any time, in any place and in any form. The organization or individual may claim that they have the right to use the images under the Fair Use doctrine. What is fair use and what does it mean?

In the U.S. the copyright laws include a limitation of use without permission or licensing of copyrighted material. The use of a reproduction of a particular work without permission of the copyright holder is allowed and not considered an infringement under the Fair Use doctrine. The use may be considered fair when it is used for educational purposes such as teaching or research. Other instances of fair use are:  commentary, news, and criticism. The Fair Use doctrine applies to video, audio, text, and imagery.

Under the umbrella of fair use, libraries are able to offer photocopies of book pages. Search engines are able to offer lower quality thumbnails of images for research purposes and bloggers may post images for criticism or commentary. Teachers may incorporate images into curriculum for educational purposes. After all, where would artists be without visual examples of photography or art in the classroom? What fair use does not cover are commercial purposes.

In a real world example an artist incorporates an image from a photographer’s web site (without permission) into their blog. The image used was not pertinent to the blogger’s works of art. The blog post did not comment on the image nor was it mentioned in anyway. The image was simply incorporated for visual appeal. The blog post was simply to keep fans, customers, and patrons informed that the blogger’s new second art studio was coming along nicely. This is an advertisement promoting or marketing the new secondary studio. In this case the artist blogger is unable to claim fair use due to the advertisement being a commercial purpose.

The copyright code has four factors that are considered in determining that a use of the material in question is fair. The four factors are:

  • The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
  • The nature of the copyrighted work.
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  • The effect of the use upon the potential market for, or value of, the copyrighted work.

The third factor above regarding the amount or portion used is not quantified by law. There are industry standards though. The rule of thumb is any copyrighted material that is used equals over 10 percent of the original may be considered too much. In the case of imagery whether it is photography or art the rule of thumb is that the total is no more than 5 images from a single artist. Online educators are given these industry standards for incorporating copyrighted material into their curriculum:

  • Motion media (video) – allowable up to 10% or 3 minutes whichever is less.
  • Text material – up to 10% or 1000 words whichever is less.
  • Music, lyrics, music video – up to 10% but no more than 30 seconds.
  • Imagery including art or photography – no more than 5 images from an artist or 15 works from a published collective work.

Other industry guidelines are time related. The most common recommendation for teachers who use copyrighted works under the Fair Use doctrine is to do so for a limited time. Online and classroom instructors are recommended to incorporate the copyrighted material into curriculum based instruction and conference presentations for a 15 day availability period. After 15 days the copyrighted material can be put in reserve or archives for 2 years. After the two year period permission from the copyright holder should be obtained. Remember these are just guidelines and can differ amongst organizations.

Artist’s Actions

Artist’s need to think about and consider fair use laws when dealing with copyright infringements. While this sounds like common sense it is now a legal consideration. Why?  In 2008 the U.S. court ruled that “failure to consider fair use when sending a DMCA notice could give rise to a claim of failing to act in good faith.” (Lenz v. Universal Music Corp., 572 F. Supp 2d 1150 (N.D. Cal. 2008).)

Here are some corrective actions that artists can take when dealing with potential copyright infringements; it also ensures that the artist has done their due diligence:

  1. Double check licensing records. This includes verifying sales or lack of licenses with any stock agencies.
  2. Consider Fair Use Laws – consider any probable claims of fair use.
  3. Make sure that elements in question qualify for copyright.
  4. Check the quantity of the material in question.
  5. Check the WhoIs registry – discover what countries are involved.  U.S. Copyright laws are only applicable in the U.S. This includes the DMCA take down notice.
  6. Contact the potential infringer in writing requesting the removal of the material in question. Keep documentation and obtain screen captures identifying potential infringements.
  7. File a DMCA Notice if needed. Only the copyright holder or a designated agent may file.
  8. Consult a copyright lawyer when you feel it is necessary.

Why is due diligence important when filing a DMCA notice? There are penalties for filing a false DMCA notice. Due diligence is simply taking reasonable steps to satisfy legal requirements. In relation to the good faith phrase regarding the DMCA notices it is wise to be armed with knowledge.

Additional Reading

Article from Plagiarism Today: When Not to File a DMCA Notice

Article summaries from Stanford SULAIR: Copyright and Fair Use

Copyright Duration Diagram from Public Domain Sherpa – Copyright Code Flyer – FL-102

3 Comments leave one →
  1. Oma (Caribbean Ink) permalink
    February 8, 2012 10:30 am

    Very Informative …. thanks for a good read! I learnt so much.

  2. February 9, 2012 4:26 am

    Great information, Sun At Night! Very grateful that you took the time to research this and post it for the rest of us. 🙂

    Thank you!

  3. February 9, 2012 11:10 am

    Yes, what they said! Thank you.

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