Can the doctrine of fair use be restricted by the photog?

[S.Horton]

The doctrine of Fair Use, in the USA, basically means if someone takes a photograph and uses it for certain reasons, detailed here (http://www.photoattorney.com/2007/09/is-unauthorized-use-of-your-photograph.html) then they do not have to pay.

An excerpt, from the PhotoAttorney website:
Some people use your photographs for educational or newsworthy purposes without authorization and claim it as "fair use." The doctrine of fair use means that copying will not infringe a copyright when it is "for purposes such as criticism, comment, news reporting, teaching, scholarship or research."


So, does anyone just happen to know if Fair Use can be disallowed explicitly? By that I mean the website the photo appears on forbids use for editorial or educational purposes, it gets used, should the party using the photo pay?

[rhys]

I suspect that would worry fine art photographers only. There aren't a great deal of fine art photographers around. Most of us do stuff that when it's done we wash our hands of it and move on.

[Longwatcher]

So, does anyone just happen to know if Fair Use can be disallowed explicitly? By that I mean the website the photo appears on forbids use for editorial or educational purposes, it gets used, should the party using the photo pay?

The only exception I can think of is if the copyrighted subject is created for one of the stated fair use exemptions (such as education) then using it for education might violate copyright if you copied it without paying. Same I think would go for a shot taken for specific news release being used for news without paying.

But I think that you would still be under fair use if you were using an education product as a news item, instead of an educational item.

But that is the only exceptions I can think of.

Disclaimer, I am not a lawyer - seek one for more accurate information.

[Vlad042]

The quoted section should be read as:
"for purposes such as criticism(about the work), comment (on the work), news reporting (about the work), teaching, scholarship or research."

They can't take a photograph and use it claiming fair use just because the photo is relevant. They must be reporting on the photo itself.

No you can't disallow fair use. The point of the law is to allow discussion on copyrighted material and the use of copyrighted material to teach what could otherwise not be taught.

And there are some factors that are taken into account.
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.So if the use of the work would devalue it, or if it is being used for gain, the use may be deemed not to be fair use.

But as always if you are concerned about legal matters: TALK TO A LAWYER

[S.Horton]

^^ Thx

[bieber]

So, does anyone just happen to know if Fair Use can be disallowed explicitly?
No, you can't nullify legal doctrine as you wish. We call this fair use because the courts have ruled that it's entirely fair for the public to be able to use copyrighted works in such a manner, and extending copyright protection to those uses would hinder the public good more than it would serve it.

[mjordan]

But, if someone uses one of your images, there is nothing stopping you from taking them to court over it's use, other than the time and money required to do so. A lawyer can't tell you it's fair use or not, nor can anyone else. Only a court of law. You might not win, but then it's going to cost the other party as well to defend their right to use the image. And they might not want to do that.

Mike

[bieber]

But, if someone uses one of your images, there is nothing stopping you from taking them to court over it's use, other than the time and money required to do so. A lawyer can't tell you it's fair use or not, nor can anyone else. Only a court of law. You might not win, but then it's going to cost the other party as well to defend their right to use the image. And they might not want to do that.

Mike

A) That's a horrid abuse of the court system, and
B) When you lose, the defendant is going to be awarded legal costs, and they may even get to sue you for malicious prosecution (or whatever the civil equivalent is) since you took them to court just to try to bully them into giving up their legal rights.

[mjordan]

Bieber, a couple of points on your comments:

A... the courts are full of abuse of our legal system and people that only take others to court to intemidate them and bully them. And many are a lot more freverous than someone protecting their copyright.

B... if the person feels that their image is being infringed on, then they have the legal right to try and protect their copyright. And if they do lose, I don't know if they also have to pay the defendant's legal costs as well. I think that's up to the court to decide. And just like someone that feels they have been infringed on has the right to sue, someone that feels they were sued wrongly has the right to sue back... at least here in the US. And isn't suing back to "get even" just as abusive of our court system?

I don't say suing is right or wrong. But I am saying that here in the US, a person has the legal right to use our legal system if they feel they have been or are being wronged. It's up to the court to decide if they are right or not.

Mike

[bieber]

Bieber, a couple of points on your comments:

A... the courts are full of abuse of our legal system and people that only take others to court to intemidate them and bully them. And many are a lot more freverous than someone protecting their copyright.

How is this relevant? I didn't say "That would be a horrid abuse of the court system, which is bad because no one else is doing it," I just said that suing someone over something that you know is fully allowed by accepted legal doctrine would be abuse of the court systems. It doesn't matter who else is doing it, it still doesn't help anything


B... if the person feels that their image is being infringed on, then they have the legal right to try and protect their copyright. And if they do lose, I don't know if they also have to pay the defendant's legal costs as well. I think that's up to the court to decide. And just like someone that feels they have been infringed on has the right to sue, someone that feels they were sued wrongly has the right to sue back... at least here in the US. And isn't suing back to "get even" just as abusive of our court system?

You weren't talking about suing over actual copyright infringement, you were talking about filing a suit that you know ahead of time has no merit whatsoever just to try and bully the defendant into giving up their legal right to use your copyrighted works in accordance with accepted Fair Use doctrine. If you sue a college photography professor for showing your photograph to his students on a screen and making comments about it, knowing full well that it was purely for educational purposes, then you're just being a bully, plain and simple. And when the professor sues you back for his legal expenses, he's not "getting even," he's reclaiming what you wrongfully took from him, which is what the civil court system is actually meant for.

[mjordan]

Only a court of law can determine if it has merit or not. I can't. A lawyer can't. I might feel I don't have a chance at all, but if I still feel I was wronged and I have the money to hire a lawyer and sue over it, then that's my right here in the US. A lot of cases that were felt they didn't have a chance have been won.

Frankly, I think you have mis-understood what I'm getting at, bieber. I'm talking about protecting my copyright or anyone protecting their copyright if they think they are int he right. It doesn't matter if it's a little ole lady using it for a screen saver, a college professor using it in class, or IBM turning it into a national ad campain. There is a limit to "Fair Use"... it's not just an open ticket to use anyone's image and say it falls under the Fair Use law. And if someone is infringing on a copyright, the owner of that copyright has the legal right to go after the person if they want... regardless of who thinks it's someone bullying, intimidating or they are just wanting to clog up the legal system. Your diffinition of bullying could be another person's diffinition of protecting their legal copyright. And the more people that just ignore copyright infringement, the more it's going to hurt all of us... because if we don't protect it, we will lose it.

Mike

[S.Horton]

My brother is a trial attorney.

We spoke tonight.

"Fair Use" is a defense to a (C) violation.

Nothing more.

[P51Mstg]

Fair use is a DEFENSE in a copyright suit. You can sue virtually anyone for anything, and no you don't have to pay the defendant's attorney fees. (of course you would probably have to pay your lawyer thought, they are not taking it on a contingent fee)

If someone uses your picture, you sue. They claim Far use as a defense as to why they think they can use it. If the court thinks its "fair use", then case dismissed. If not, then you have damages to collect from them.

Look at educational uses (to make it simple, use of a book). They are limited uses, such as for research. THEY ARE NOT to make a copy of the entire book to distributed to 40 people in the class for free, or attach a copy to the state educational journal to distribute to all its subscribers.

Same thing with plays and sheet music, you have to buy copies for all the actors or members of the band or the author/composer doesn't get any royality money.

I'll bet you money that there are people here who wouldn't steal a photo, but would run off copies of "Our Town" for the high school class play on the office photocopier.

Mark H
PS: I was a lawyer for 17 years and a photographer for 41 years now (did both at the same time)