Is this fair use?

[MannyL]

I found an image online using google image that I would like to to use part of in a bitrthday gift to a good friend. The image is a picture of Bon Jovi from an advertisement for A&E Biography.

The picture is located at http://www4.islanddefjam.com/media/bonjovi/jbjae.jpg which may not be safe for work so the link is disabled.

I found a place that will make custom items with a image you supply. If I were to crop part of the image out and send them the part I want to use and had them make two of an item that is considered consumable but one set would that fall under fair use?

If not who would I have to contact to ask for permission which I doubt I would recieve?

A) Bon Jovi’s agent
B) The Photographer
C) A&E
D) The record label Bon Jovi is on because it’s their site

[RealityChuck]

Fair use has to be determined on a case-by-case basis, but what you describe doesn’t look like it is. But it’s up to the copyright holder to sue.

The photographer is most likely to own copyright, but he may have sold it to someone else. At the very least, the photographer can tell you who to contact.

[Hello_Again]

Am I to understand that you would like to make a single, custom gift for your friend with this image? One you do not intend to sell or make generally available?

There is a long answer (see below) but the short answer is:
de minimis non curat lex: the law does not concern itself with trifles.

Long answer: there are four stautory factors used in evaluating fair use: whether the use is intended for commercial purposes, the nature of the copyrighted work (usually, just asks if it is published already and if it is a work of creative expression), the amount used in proportion to the whole, and if the questioned use does now, or is likely to in the future, affect the market for the copyrighted thing, or derivatives the copyright holder is likely to create. Without going way, way into it, I think you’re ok.

BTW, the copyright goes to the photographer.

[Gfactor]

[QUOTE=Hello Again]

There is a long answer (see below) but the short answer is:
de minimis non curat lex: the law does not concern itself with trifles.

[/QUOTE]

Hmmm . . .

[QUOTE=Gfactor and acsenray (November 2006)]
A related defense is de minimis infringement, but that won’t help you if you’re duplicating entire works. On the contrary, the de minimis defense hinges on the contention that the copyrighted work is a tiny portion of a new work, created by the copier. A common example is a poster or photograph shown briefly in a movie. But brevity is important, and this is another defense that does not allow for clear-cut distinctions.

The defense didn’t work when the television show “Roc” showed a poster by Faith Ringgold. According to the court, the segments of the program in which the poster was visible to any degree lasted between 1.86 and 4.16 seconds. The aggregate duration of all nine segments was 26.75 seconds. The court found:

In some circumstances, a visual work, though selected by production staff for thematic relevance, or at least for its decorative value, might ultimately be filmed at such a distance and so out of focus that a typical program viewer would not discern any decorative effect that the work of art contributes to the set. But that is not this case. The painting component of the poster is recognizable as a painting, and with sufficient observable detail for the “average lay observer” to discern African-Americans in Ringgold’s colorful, virtually two-dimensional style. The de minimis threshold for actionable copying of protected expression has been crossed.

In other words, if the work is recognizable in the new work, there’s a good chance the defense will fail.

In a later case, the same court upheld a de minimis infringement defense by the producers of the movie Seven. In that case, the photos had more overall screen time (the total onscreen time was about 36 seconds, and the longest uninterrupted view was about 6 seconds), but they weren’t in focus most of the time. The court upheld the defense because the photographs “appear[ed] fleetingly and [were] obscured, severely out of focus, and virtually unidentifiable[.]” In this context a lawsuit over the use of a sculpture based on a Frederick Hart work in the movie The Devil’s Advocate (1997) is frequently discussed. The parties settled the case so we’ll never know how a court would have ruled.
[/QUOTE]
http://www.straightdope.com/mailbag/mcopyright2.htm

Probably not. Now if the photo was on a computer screen in the background of a photo, preferably so distant that it was barely recognizable, then you might have something.

[MannyL]

[QUOTE=Hello Again]
Am I to understand that you would like to make a single, custom gift for your friend with this image? One you do not intend to sell or make generally available?

There is a long answer (see below) but the short answer is:
de minimis non curat lex: the law does not concern itself with trifles.

Long answer: there are four stautory factors used in evaluating fair use: whether the use is intended for commercial purposes, the nature of the copyrighted work (usually, just asks if it is published already and if it is a work of creative expression), the amount used in proportion to the whole, and if the questioned use does now, or is likely to in the future, affect the market for the copyrighted thing, or derivatives the copyright holder is likely to create. Without going way, way into it, I think you’re ok.

BTW, the copyright goes to the photographer.
[/QUOTE]

I would like to make a single custom gift for my friend through a third party. Said third party is willing to do it but part of me is nagging that it’s not exactly fair for me to do this without asking permission of the rights holder and I’m not used to that nagging. I guess it’s because something physical will be made versus some electronic bits.

I’m not 100% sure where Google found the image because you can’t browse the folder so it had to be published some place for the world to see. I don’t see how using the picture will affect the market for a show that has passed and it was advertising.

I guess to get rid of the pangs of “improper use” I’m having I need to contact island music to ask them who the photographer was for the shoot and then contact the photographer for permission.

It would have been easier if it was Bon Jovi who I would have had to ask, then I could have stopped at his brother’s bar and asked him to pass a letter on to Jon.

[Hello_Again]

That is not exactly correct. there are two things at work.

Firstly, de minimis is not doctrinally, a fair use defense (although the amount in proportion to the whole is one factor). Techincally, its not infringement at all. As in the example of a cartoon which is copied out of a magazine (it always seems to be the New Yorker for some reason) and posted on your fridge. Although you have copied a copyrighted work in its entirety, the law really doesn’t care. It is a trifle not worth considering.

Secondly, copying something in its entirety does not definitionally find against fair use. See (Kelly v. Arriba soft Corp 336 F.3d 811) Just as a small copying does not definitionally find for fair use (Harper Row v. Nation Enterprises, 471 US 569)

In fact, no one single factor can be dispositive. All four must be weighed, with the first and fourth being most important to the court (commercial purpose and market harm). BTW, when the use is non-commercial, market harm cannot be presumed but must be proven by the copyright holder.

(Ask the girl who just wrote a paper on fair use)

[Hello_Again]

In other words, if the work is recognizable in the new work, there’s a good chance the defense will fail.

I would have to call this a gross simplification. Check out Campbell v. Acuff Rose Music. (510 US 569, 1994). AKA 2 Live Crew v. Roy Orbison on the matter of the highly recognizable opening riff of “Pretty Woman.” You gotta love it when 2 Live Crew goes all the way to the Supreme Court (and wins).

In fact, a work need be only minimally transformative if the other factors weigh in favor of fair use. “transformative” means it has a goal or purpose different than the original, and does not serve as a market substitute, eliminating the need for the original.

MannyL I really think you’re ok. I would argue de minimis that it is not infringement at all, and plead in the alternative that the 4 fair use factors all weigh for you.

[Gfactor]

[QUOTE=Hello Again]
Secondly, copying something in its entirety does not definitionally find against fair use. See (Kelly v. Arriba soft Corp 336 F.3d 811) Just as a small copying does not definitionally find for fair use (Harper Row v. Nation Enterprises, 471 US 569)

[/QUOTE]

In short, while U.S. courts haven’t flatly declared wholesale copying illegal, they don’t look kindly on it.

Id.

(Ask the girl who just wrote a paper on fair use.)

Just wrote one myself.

Firstly, de minimis is not doctrinally, a fair use defense (although the amount in proportion to the whole is one factor). Techincally, its not infringement at all. As in the example of a cartoon which is copied out of a magazine (it always seems to be the New Yorker for some reason) and posted on your fridge. Although you have copied a copyrighted work in its entirety, the law really doesn’t care. It is a trifle not worth considering.

It’s a case not worth filing, which isn’t really the same thing at all.

To establish that a copyright infringement is de minimis, the alleged infringer must demonstrate that the copying of the protected material is so trivial “as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying.” Ringgold, 126 F.3d at 74. In determining whether the allegedly infringing work falls below the quantitative threshold of substantial similarity to the copyrighted work, courts often look to the amount of the copyrighted work that was copied, as well as the observability of the copyrighted work in the allegedly infringing work. See id. at 75. Observability is determined by the length of time the copyrighted work appears in the allegedly infringing work, as well as the prominence in that work as revealed by the lighting and positioning of the copyrighted work. See id.

http://www.ivanhoffman.com/infringement2.html

[Gfactor]

[QUOTE=Hello Again]
I would have to call this a gross simplification.
[/QUOTE]

While wholesale copying does not preclude fair use per se,
copying an entire work militates against a finding of fair use

KELLY v. ARRIBA SOFT CORPORATION (2002) | FindLaw

http://laws.lp.findlaw.com/9th/9955850.html

See generally, Patry, William, *The Fair Use Privilege in Copyright Law * (2d ed., 1995)

[Gfactor]

It is not fair use for a non-profit religious organization to copy verbatim a religious publication of another non-profit religious organization even though the work is no longer available.

http://www.copyright.iupui.edu/FUsummaries.htm

Gotta go to bed now. I have a hearing in the morning.

[Hello_Again]

Yes, but you can’t take in isolation. Ringold was a commercial use (television show). Other examples of copying, such as downloading music, completely substitute for the copyrighted item.

MannyL’s use fits neither category. It is completely distinguishable! It is intended for a single viewer in a non-commercial context. Where’s the proof of market harm? Where’s the derivative the copyright holder would choose to develop? Where’s the substitution for the copyrighted material?

factually absent, that’s where.

In considering MannyL’s non-commercial use, the court will not find against Defendent based solely on partial copying from a low-resolution image when there is a transformative purpose and no proof of present or future market harm. Defense rests.

[Hello_Again]

PS, thanks for playing Gfactor. You’ve been awfully nice to this n00b.

[Gfactor]

[QUOTE=Hello Again]
PS, thanks for playing Gfactor. You’ve been awfully nice to this n00b.
[/QUOTE]

My pleasure.

[Jurph]

[QUOTE=Hello Again]
It is intended for a single viewer in a non-commercial context. Where’s the proof of market harm?
[/quote]

Isn’t the guy making the Bon Jovi fridge magnets* turning a profit? Seems like his actions are for a commercial context – but if he’s doing something artistic to it, like putting JBJ in drag, or pasting rhinestones on his ears** , that would be akin to the 2 Live Crew example, wouldn’t it? As long as the work is transformed – what’s the doctrine there? Seems like it would just skate by.

Where’s the derivative the copyright holder would choose to develop?

Seems like JBJ (or the copyright holder) could sell fridge magnets made from that photo as easily as the guy at the mall / online / whoever.

Where’s the substitution for the copyrighted material?

Not clear on this part, so I’ll give you the benefit of the doubt.

In considering MannyL’s non-commercial use, the court will not find against Defendant based solely on partial copying from a low-resolution image when there is a transformative purpose and no proof of present or future market harm. Defense rests.

I’ll give you transformative purpose. The present harm is not worth suing for; the future harm is probably also insignificant.

• • e.g.
• • e. gratuitous et g.

[Duckster]

[QUOTE=Hello Again]
BTW, the copyright goes to the photographer.
[/QUOTE]

Are you sure? It is my understanding that if it was a work for hire, copyright belongs to the entity that hired the photographer.

[MannyL]

Well in this case it’s not fridge magnets. I don’t want to say what it is because I don’t want to bring attention to their site. Mainly because the person who is getting the item as a gift knows I come here and she knows my screen name. If I discuss what the item is openly she may find out her birthday gift.

[MannyL]

[QUOTE=Duckster]
Are you sure? It is my understanding that if it was a work for hire, copyright belongs to the entity that hired the photographer.
[/QUOTE]

No the copyright belongs to the photographer that is why if you go to a professional photographer the copies you get are marked not for duplication and most places will not copy them.

[Duckster]

[QUOTE=MannyL]
No the copyright belongs to the photographer that is why if you go to a professional photographer the copies you get are marked not for duplication and most places will not copy them.
[/QUOTE]

No, I am referring to works for hire.

[Garfield226]

Normally, the copyright goes to the creator. There are exceptions:

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.

In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a “work made for hire” as:

  a work prepared by an employee within the scope of his or her employment; or

  a work specially ordered or commissioned for use as:
      * a contribution to a collective work
      * a part of a motion picture or other audiovisual work
      * a translation
      * a supplementary work
      * a compilation
      * an instructional text
      * a test
      * answer material for a test
      * an atlas

if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

From the Copyright Office’s “Basics of Copyright” page.

Note that if the photographer was an employee of the ad company or A&E or somesuch, the copyright most likely lies with the company. If the photographer was a contractor, he may have kept the copyright.

The first case is like a newspaper photographer. The photographer doesn’t own (unless she’s negotiated it in contract or something) copyright to the photos she shoots while working for the paper, since she’s an employee creating the work within the scope of her employment.

The second case is like a wedding photographer you’d hire for the day. In CCNV v. Reid 490 U.S. 730 (1989), for instance, CCNV was a non-profit with an idea for a sculpture. They took the idea to Reid and paid him to create it. It was NOT considered a work for hire, since Reid was treated as an independent contractor (chose when to work, had freedom to hire assistants, used own tools, did not have daily supervision, CCNV did not provide benefits or Social Security or unemployment or workers’ comp., etc.).

[pulykamell]

[QUOTE=Duckster]
Are you sure? It is my understanding that if it was a work for hire, copyright belongs to the entity that hired the photographer.
[/QUOTE]

As mentioned above, by default the copyright goes to the photographer. In most permanent employment situations, your employer keeps the copyright to your images. In freelance situations, some places will try to get you to sign a “work for hire” contract. Unless they’re paying me some ungodly sum of money, I would never sign such a contract. But some photographers do and relinquish the rights to their photographs (and any future profits from resales) in this manner.