I am no friend of fair use. “Fair Use is a USA law that provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantially of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.”
This law does not even require that someone get a permission from the author or, at least, informed them of such usage. Guess common courtesy does not exist in US copyright laws. Obviously, “non- licensed” means free. Fortunately, most people do not abuse this law that is widely open to interpretation.
This law has been in existence for a long time and is to me, much more damaging then the potentially upcoming Orphan Work Bill. After all, in this case, one knows the copyright owner but is still allow to use his/her work for free and without having to be polite about it.
Created to help scholar use reference work without going bankrupt, it has become the principle doorway to common copyright infringement.
Why not offer a small $1 licensing fee for those poor scholars that cannot afford paying full price. Or a special “education” fee, like Apple does with its computers. ( mmm…you have to see how much the US University charge per year/per student . Wonder what they do with that money instead of paying artists).
The idea is that every work used should be compensated, regardless of the amount. There has been work done thus compensation should be applied.
However that is not the worst. A famous blog situated on one of these new community based portal ( no, not DigitalRailroad) has been using an insane amount of images. At first, it seemed that since it is a professional blog, created with the obvious intend to drive traffic to its Collection, it would be properly licensing these images.
Imagine my shock ( and awe) when I heard that it does not. It recently used an image from a very well known photo agency that it ripped from another online legitimate publication and used it, along others, on its blog. No permission and no money exchange.
When asked why they would use images without licensing them when they are in image licensing business? they responded, “I can’t answer that question.”
They did pull the image down, only to be replaced by another from another agency. Probably without permission. What compels a company that is itself in the image licensing business to not pay for images that they clearly use for promotional usage? Especially after screaming loud and clear they would be spending over $1 million in marketing this year. Is there no % in that budget to pay for licensing other people images ?
It would be nice, and honest, for that company, to clearly define their policy on the usage of photograph and stop claiming their are the defenders of the photographers when they boldly rip images from other sites like cheap second hand robbers.
A quick clarification – in the US copyright is a special provision in the Constitution, it is not a “natural right” (rights that relate to the individual or the relationship between individuals and the government) which is why it is not listed in the “bill of rights” (i.e. the first 10 amendments). The constitution is not specific on what the nature, term, and limits are with respect to the nature of this provision (copyright laws do get specific, but the constitution is vague). Copyright is a limited monopoly over a work and its uses for a limited time. This monopoly is granted by the government, on behalf of the people, in order to promote “progress” in science and “useful arts”. In return for this rather generous grant of monopoly power the recipient of such a grant has to recognize and respect that this grant is not without limits, and other rights held by the population still hold sway, hence fair use. The intent of copyright is to create an incentive to create new copyrightable works, not to create a perpetual, and unjustified, source of revenue (or merely control). Eventually works make their way into the public domain to be shared by all.
Initially the copyright terms in the US were 14 years, a reasonable amount of time for a free publicly-granted monopoly. Today the terms have blossomed into a ridiculous life+70 years in the case of where the author of the work retains the copyright.
Fair use is a perfectly legitimate counter-balance to the monopoly granted by copyright, by the government, on behalf of the people, to create incentive for more copyrighted works to be created.
Thank you for the more thorough legal explanation. Sad to see that you find 70 years “ridiculous” and mistake photographers for multi milion dollar corporations.
However, my point here was more about commercial sites, like photoshelter.com, who abuse the law. They apparently believe that other people’s image should be use, for free, to promote their services.
This post was brought up within the forums at Photoshelter, but unfortunately, Admin chose not to reply.