Is this *probably* fair use?

February 26, 2006 9:15 AM

I want to scan two pages from a 1952 picture book and post them on my web site. I've read a good bit about copyright and fair use, and I think this falls under fair use, but I want to be, say, 90% certain.

This is an obscure book, and its contents are sort of like editorial cartoons, only the images are animal pictures. I know the safest thing to do is to contact the publisher, try to go about getting permissions, etc. But that could take forever and I want to use these images now. (if i go about contacting them anyway, when the images are already up, couldn't that tip whoever off and draw attention to it?)

Fair use entails that I'm not making commercial profit off this (check), that I'm not hindering the profit-making ability of the original copyright holder (uh, it's way out of print -- check), that i'm using a very limited amount (2 pages/images out of a full-length book), and that i'm using it to comment critically on the source material (i will, in brief...)

so, how does that sound?

posted by snortlebort to Media & Arts (8 answers total)

Sounds like you're fine. Technically, you only need to satisfy one prong of the four-prong fair use test to qualify for the copyright exemption. You tend to be safer the more prongs you satisfy.

You're totally fine here.
posted by mediareport at 9:21 AM on February 26, 2006

Best answer: Here is the four-factor test for fair use:

1. What is the character of the use? Nonprofit (good), criticism (well, looks like you won't do much but it's still good).
2. What is the nature of the work to be used? Imaginative (bad, but this doesn't outweigh other factors).
3. How much of the work will you use? A small amount (good).
4. If this kind of use were widespread, what effect would it have on the market for the original or for permissions? Original is out of print or otherwise unavailable (neutral).

My non-lawyer snap judgment (based only on the limited facts you have provided here) is that this could be considered fair use. Additionally, since the work was published before 1964, if its copyright renewal was not filed, it would be in the public domain now.
posted by grouse at 9:25 AM on February 26, 2006 [1 favorite]

Technically, you only need to satisfy one prong of the four-prong fair use test to qualify for the copyright exemption.

I don't think that is correct, and I wouldn't rely on that if I were you. The law says you need to consider at least all four factors, and maybe even additional factors. For example, courts have determined that using audio samples in your music is not necessarily fair use, even if you use only a small piece that does not affect the market value of the original work. That satisfies two prongs but it's not enough.
posted by grouse at 9:30 AM on February 26, 2006

Response by poster: i believe the copyright renewal was filed -- at least, i know it was filed for the author's other book of the same sort of thing. but yeah, i seem to meet at least three of the four factors. (I'm not sure i understand the second one... -- this is part of a memoir/creative non-fiction piece, in which the book i want to use makes an appearance).

ok, subquestion -- say i want to slap a "DONATE" button on my site at some point in the future. does that make this a commercial enterprise?
posted by snortlebort at 9:32 AM on February 26, 2006

I don't think that is correct

Yeah, fair enough. I overstated. But federal judges do have a wide degree of latitude in determining fair use. Stanford's pages have a section about the Four Factors that goes into more detail.
posted by mediareport at 9:43 AM on February 26, 2006

I'm not sure i understand the second one...

mediareport's link explains it like this: "Because the dissemination of facts or information benefits the public, you have more leeway to copy from factual works such as biographies than you do from fictional works such as plays or novels."

It's the nature of the work you want to copy, not the work you are creating.

say i want to slap a "DONATE" button on my site at some point in the future. does that make this a commercial enterprise?

It makes you MORE commercial, but maybe not enough. Once you start using Google Ads, I would start to wonder whether the other factors is really enough to outweigh the commercialism, considering that it sounds like your "criticism" might be a little pro forma, eh? What would the judge say?

And please accept my apologies if you are actually putting this on your web site as a good faith effort to critically analyze it. That's just not what "i will, in brief" sounds like to me, although since I haven't seen the page I can't possibly judge for myself. And if you aren't, then this page can be used against you in court, so maybe you don't want to say so here.
posted by grouse at 9:53 AM on February 26, 2006

Best answer: Do you really think they're going to sue you for the riches you made off googly ads? Come on. If they notice, and if they care, they'll almost certainly send you a letter first, asking you to remove the images. Then you can decide to fight or not. This really seems like worrying just a bit too much given the facts in this particular case.
posted by mediareport at 10:14 AM on February 26, 2006

I was considering this more as an academic matter. As a practical matter, there is unlikely to be any reason for concern, for the reasons mediareport said.
posted by grouse at 10:20 AM on February 26, 2006