Google Image Copyright Question

[Modevo]

Let’s say I like a picture (Bedroom in Arles by Van Gogh for example) on Google images. Provided I don’t use it for anything besides keeping a nice photo album on my computer for personal consumption/slideshows… Well that is legal, right?

[Saint_Cad]

Nope. That would not be fair use.

[Giles]

@Saint_Cad

Nope. That would not be fair use.

Well, the answer really is, “It depends.” (That’s the answer to a lot of legal questions.)

If you use an image from Wikipedia (such as any of the images found and linked at http://en.wikipedia.org/wiki/Bedroom_in_Arles), then generally the picture is in the public domain or has a Creative Commons license which would allow you to save a copy of it on your, or make a physical copy of to hang on a wall in your home. I say “generally” there, because it may not always be true: Wikipedia tries to use images that can be freely copied (with attribution), but (as the notes to some of those images state) there may some doubts about that with some images – possibly just in some jurisdictions.

In this particular case, Van Gogh’s works would all be in the public domain, but there might be some question about whether a photographer making a copy of on of his paintings could claim copyright in the photograph. Wikipedia claims that they can’t, and I think they are right, because a photographic copy like that lacks originality.

[njtt]

@Saint_Cad

Nope. That would not be fair use.

Any chance you would explain why not? It is certainly not commercial use. Modevo is not profiting from someone else’s image. What about the image files in my browser cache? Am I infringing someone’s copyright if I don’t clean them out after every session, or if I use Irfanview to look at an image file in the cache?

How is it worse than ripping songs off a CD (that is paid for) onto one’s hard drive? I believe that that has been adjudicated to be fair use.

[ftg]

If it is merely a photograph or scan of a public domain image (a so-called “slavish copy”), that cannot be copyrighted. The person taking the photograph has to make a significant addition to the work. E.g., the way the photograph was taken is unique in some way (a person standing nearby, the composition, etc.) or the image was manipulated in some way afterwards. E.g., colors or effects added.

This hasn’t stopped companies from making claims on copyrights of such images. E.g., Microsoft has made arrangements with galleries to scan portraits and MS then claims copyright on those scans. If you want to fight MS’s lawyers hard enough, you’ll win.

Here’s a link about the most famous recent case in this regard.

In short, to get a copyright on something there has to be some originality. A simple picture of something someone else did is not original. So download and use all the Van Gogh pics you want.

[Exapno_Mapcase]

@njtt

Any chance you would explain why not? It is certainly not commercial use. Modevo is not profiting from someone else’s image. What about the image files in my browser cache? Am I infringing someone’s copyright if I don’t clean them out after every session, or if I use Irfanview to look at an image file in the cache?

Fair use:

17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

        the purpose and character of the use, including whether such use is of a 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; and
        the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

That a use is noncommercial does not automatically make it fair use. It’s just one of the factors looked at. Personal enjoyment is not a nonprofit education purpose. It can violate clause four, since it obviates the need to purchase a licensed likeness.

Whether it does so in this particular case is doubtful. But personal use is not the same as fair use.

[janeslogin]

@Saint_Cad

Nope. That would not be fair use.

One time I called this sort of thing “passive aggressive trolling” - someone objected that all trolling was passive aggressive. IMHO Saint Cad is trolling.

[Chronos]

Saint Cad is giving the factually correct answer. Or at least, a very good guess at the factually correct answer: The fair use guidelines are intentionally fuzzy, and it’s conceivable that a judge might find the OP’s example to be fair use, but probably not.

[Colibri]

@janeslogin

One time I called this sort of thing “passive aggressive trolling” - someone objected that all trolling was passive aggressive. IMHO Saint Cad is trolling.

Moderator Note

janeslogin, accusations of trolling are not permitted outside the Pit. Since you have no previous warnings, I’m making this a note instead of a warning. But don’t do this again.

Colibri
General Questions Moderator

[ftg]

@Chronos

Saint Cad is giving the factually correct answer. Or at least, a very good guess at the factually correct answer: The fair use guidelines are intentionally fuzzy, and it’s conceivable that a judge might find the OP’s example to be fair use, but probably not.

Questions: So you find my response incorrect? And if so, for what reason? It seems that Bridgeman vs Corel is quite relevant.

[Space_Vegetable]

As **ftg **says, the question of fair use is irrelevant here, because photographs of out-of-copyright works are not protected by copyright in the first place (assuming we’re talking about photographs that faithfully reproduce the work without adding artistic embellishments).

To quote from his cite:

@Lewis A. Kaplan

In this case, plaintiff by its own admission has labored to create “slavish copies” of public domain works of art. While it may be assumed that this required both skill and effort, there was no spark of originality – indeed, the point of the exercise was to reproduce the underlying works with absolute fidelity. Copyright is not available in these circumstances.

So any discussion of fair use entirely misses the point.

[Chronos]

ftg, your response was correct for the specific case involving van Gogh (since everything he did is now public domain), but I gather that the OP was looking for a more general answer that also (or especially) encompassed works which are still under copyright.