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August 12, 2009 08:47 PM
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There are four factors to consider when deciding if something is considered Fair Use.
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
Copyright protects the particular way an author has expressed himself. It does not extend to any ideas, systems, or factual information conveyed in the work.
Everything above is from the U.S. Copyright Office. I also just finished my Media Law class, so while I'm certainly no expert, I do have some know-how.
#1 - We're a little sketchy on this area. Mahalo is certainly a commercial site, but we're not using the pictures commercially... So it's kind of a toss up.
#2 - The nature of the copyrighted work is a picture... Nothing interesting here.
#3 - This generally is asking "are we using the good parts" of the copyrighted material? In this case, I'd say no. We're using small, thumbnails of the pictures (generally), and when people click on them they're taken to the original full-size picture on the original site.
#4 - Are we hurting the commercial value of the original material? The answer here is pretty clearly that we are not. Because we aren't using the "good parts," people still must go to the original site to get the full picture. We may, in fact, actually be increasing the commercial potential of some pictures. It's debatable, but I'd say we certainly aren't hurting it.
So I think that we win out in this case. ********It should be clear that civil torts like Fair Use are never official until they've been decided in a court of law, and even then they're subject to appeal.*********
So to sum up my answer in one sentence :
Using copyrighted images should be fine, but nothing is definite.
Source(s):
http://www.copyright.gov/fls/fl102.html
University of Alabama - MC401 Media Law
Various University professors
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As for the nature of the work, it generally breaks down into a discussion of how creative or how fact based the work is. A picture is almost always going to be considered highly creative. If you get sued you're not going to win on this one.
With substantially, this is trickier. A thumbnail technically is the entirety of an image and therefore, quite substantial. But because it doesn't have the same kind of value as a normal sized image, you might have an argument here.
In terms of the effect on market value... your putting this image up probably won't change its value. Unless it is from a site where you have to purchase it and then you're going and putting it up somewhere else where it will be free for copying and saving. And then we get back into the usurping potential market thing...
But in reality, is the owner of the photos going to track down your mahalo page and sue you for infringement? Probably not. You're more likely to get busted for hot-linking the images than the infringement. The honest truth though? Fair use amounts to nothing more than the right to hire a lawyer when you get sued for copyright infringement. It gives you the chance to defend yourself, but based on the way things are playing out recently, the odds are against you, unless you live in California where the rulings have leaned slightly towards the users than the owners. And if you're taking something from another country, a lot of international copyright laws have what is known as "sweat of the brow" clauses which means that if someone worked really hard on it, they have a larger right to it. The U.S. doesn't have this (well kind of in the "nature of the use" part but really it's not the same) so you might want to see where your rights owner is from.
For a pretty good example of this check out the most recent ruling of Perfect 10 vs Google. (Note: the wikipedia page has not been updated to detail the final ruling.) Perfect 10 sold images, google listed them as thumbnails on its search pages meaning people could download what perefct 10 was selling. Google was ultimately found guilty of secondary infringement because Perfect 10 could have started selling the thumbnails as cell phone backgrounds, among other things.
So I guess the moral of this long story is that CC images are always going to be safe, so long as you use them appropriately (most still require attribution) but if you use copyrighted images it is unlikely that anyone is going to come looking for you to slap you with a lawsuit.
Source(s):
Lots of intellectual property classes.
Perfect 10 vs. Amazon
Master's thesis on Google and their intellectual property rights infringements
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Copyrighted or Creative Commons images in Mahalo pages?
When I'm editing or updating a Mahalo page, adding new images, this have to be creative common only? or I can use Copyrighted images under "fair use"?
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Best Answer Chosen by Asker
| August 13, 2009 03:28 PM |
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
Copyright protects the particular way an author has expressed himself. It does not extend to any ideas, systems, or factual information conveyed in the work.
Everything above is from the U.S. Copyright Office. I also just finished my Media Law class, so while I'm certainly no expert, I do have some know-how.
#1 - We're a little sketchy on this area. Mahalo is certainly a commercial site, but we're not using the pictures commercially... So it's kind of a toss up.
#2 - The nature of the copyrighted work is a picture... Nothing interesting here.
#3 - This generally is asking "are we using the good parts" of the copyrighted material? In this case, I'd say no. We're using small, thumbnails of the pictures (generally), and when people click on them they're taken to the original full-size picture on the original site.
#4 - Are we hurting the commercial value of the original material? The answer here is pretty clearly that we are not. Because we aren't using the "good parts," people still must go to the original site to get the full picture. We may, in fact, actually be increasing the commercial potential of some pictures. It's debatable, but I'd say we certainly aren't hurting it.
So I think that we win out in this case. ********It should be clear that civil torts like Fair Use are never official until they've been decided in a court of law, and even then they're subject to appeal.*********
So to sum up my answer in one sentence :
Using copyrighted images should be fine, but nothing is definite.
Source(s):
http://www.copyright.gov/fls/fl102.html
University of Alabama - MC401 Media Law
Various University professors
| Asker's Rating: |
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Other Answers (1)
August 13, 2009 05:05 PM
Copyright law says you can't, even with fair use. Assumedly, you're going to get paid for it whether it be in Mahalo dollars, euros, real dollars, therefore giving you a commercial interest in the photo when it's not yours to profit from. Second, even if you're using thumbnails, you could be seen as usurping a potential market, and the ridiculous part is that there is no standard to how realistically "potential" a market must be. As for the nature of the work, it generally breaks down into a discussion of how creative or how fact based the work is. A picture is almost always going to be considered highly creative. If you get sued you're not going to win on this one.
With substantially, this is trickier. A thumbnail technically is the entirety of an image and therefore, quite substantial. But because it doesn't have the same kind of value as a normal sized image, you might have an argument here.
In terms of the effect on market value... your putting this image up probably won't change its value. Unless it is from a site where you have to purchase it and then you're going and putting it up somewhere else where it will be free for copying and saving. And then we get back into the usurping potential market thing...
But in reality, is the owner of the photos going to track down your mahalo page and sue you for infringement? Probably not. You're more likely to get busted for hot-linking the images than the infringement. The honest truth though? Fair use amounts to nothing more than the right to hire a lawyer when you get sued for copyright infringement. It gives you the chance to defend yourself, but based on the way things are playing out recently, the odds are against you, unless you live in California where the rulings have leaned slightly towards the users than the owners. And if you're taking something from another country, a lot of international copyright laws have what is known as "sweat of the brow" clauses which means that if someone worked really hard on it, they have a larger right to it. The U.S. doesn't have this (well kind of in the "nature of the use" part but really it's not the same) so you might want to see where your rights owner is from.
For a pretty good example of this check out the most recent ruling of Perfect 10 vs Google. (Note: the wikipedia page has not been updated to detail the final ruling.) Perfect 10 sold images, google listed them as thumbnails on its search pages meaning people could download what perefct 10 was selling. Google was ultimately found guilty of secondary infringement because Perfect 10 could have started selling the thumbnails as cell phone backgrounds, among other things.
So I guess the moral of this long story is that CC images are always going to be safe, so long as you use them appropriately (most still require attribution) but if you use copyrighted images it is unlikely that anyone is going to come looking for you to slap you with a lawsuit.
Source(s):
Lots of intellectual property classes.
Perfect 10 vs. Amazon
Master's thesis on Google and their intellectual property rights infringements
Permalink | Report
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The Perfect 10 case is a much different case, and really shouldn't be brought into comparison here. Perfect 10 was specifically selling images (that could actually be assigned a market value). Unless a Mahalo user puts pictures on their page that are being sold, this really isn't the same thing at all. Mahalo doesn't do the same things with the pictures that Google did. Furthermore, the courts were all over the place with their rulings. Until something like this goes into the Supreme Court, I'd say there is still a lot of question as to whether or not this is legal.
All that being said, I think you're right that a Mahalo user won't have a problem. And there's no doubt that the Mahalo staff has had a lawyer do some research of their own. Their pages contain copyrighted pictures, and I'm sure they know what they're doing.