The photographic image and fair use

In the last presidential election in the United States Obama’s message of hope and change was reverberated throughout the artistic community. Artists are usually more liberal and politically leaning to the left. In the music world a song was made called “yes we can” based of a speech made by the then Democratic nomination for president Barack Obama. Graphic artist Shepard Fariey produced an image of Obama which became a symbol for his presidential campaign.

Shepard used an image by Photographer Mannie Garcia, who took the picture for the associated press in 2006. Since creating the image Shepard Fariey has been commissioned to create the official poster for the Presidents inauguration and for the front cover of Time Magazine when Obama was chosen as Times Person of a year, which was subsequently hung in the U.S National Portrait Gallery.

Shepard used the image under the terms of the fair use exception in U.S copyright law. Fair use is also known as fair dealing and fair practise and exists in most countries copyright laws. The inclusion of fair use in copyright law was to prevent copy right laws from being too restrictive that they would stifle free speech, news reporting or to prevent disproportionate penalties for accidental or inconsequential inclusion.

Shepard used the fair use exception to use the portrait by Garcia as a reference and then created his poster.

Shepard last Friday was found guilty of many things involved in the case that did not have any relationship to the image as he settled the infringement case outside of court with the Associated Press. In the suit Shepard argued that the use of the image in his work was allowed due to fair use, for the purpose of like criticism and comment.

Photographers are always trying to protect their images from infringement. Many watermark their images but for this to be done well enough to protect your image you need to have the water mark across the centre of your image taking away from the look and feel. Other options are to use files that are intentionally too small to print or imbed the image in a flash file.

The other side of the coin is sometimes photographers and designer need images that they don’t have or are unable to obtain. Normally in such circumstances image libraries are a great source and buying such images give you the copyright to use them in your work depending of the libraries’ terms and conditions.

How does a fair use effect a photographer whose images will most likely appear in a Google image search.

Fair Use

Fair use is balanced by four factors and the use of one cannot out way the others.

The factors are;

  • The purpose and character of use.

Fair use favours non-profit educational uses over commercial. There are several purposes especially appropriate for fair use; criticism, comment, news reporting, teaching, scholarship, or research. One thing the court values in fair usage is transformation. The use of the work being transformed into something new. Transformation is normally used when quoting copyrighted material in an article or mixing materials together into a multimedia presentation for teaching.

  • The nature of copyrighted work.

Depending on how the copyrighted work is being used will depend on how narrow or wide the exemption of fair use can be used. For example unpublished work such as private correspondence will have a narrower scope of fair use. Courts believe the copyright holder has the right to determine the circumstances of first publication. Courts also give greater protection to creative works meaning that non-fiction work being used with the fair use exemption, is seen in a broader sense than fictional work.

  • The amount or the portion used.

The amount of the copyright material used will change if you are in fact using the material for fair use or not. The rule of thumb is the more you use the more likely you are not complying with the exemption of fair use. The amount can also be measured in quantative terms. If the material you are using is the “heart of the material” even if it is small section of the overall work would breach the copyright exception.

With photographs and art work fair use can become controversial. If someone needs to use an image they normally need to use the whole image which may not be fair use as you are using 100% of the copyright. It can also be said that if the image is a thumbnail or low resolution the amount could be said to be a lesser amount of the whole.

  • The effect of the use on its potential market and value.

Out of all three factors this is the trickiest one. Potential market means that, if you are to use copyrighted material which, people could easily purchase in whole or a licence of, then you may not be using it in fair use.

Effect is closely linked to purpose (an earlier factor). If your purpose is for educational use then the effect of the use of copy righted material is less likey to be adverse to the market value. Whereas if your use of the material is commercial these effects can more easily be proved. Occasional quotations or photocopying of a work most likely will not have an negative effect on the market but copying whole software and films would.

The use of photography under fair use seems pretty hard to define just like most other forms of copyrighted materials. With photography it seems that the use of the image as part of an educational presentations seems within the usage of fair use though if this was to be put into a printed book then fair use may not be so well argued.

To be on the safe side, contact the owner of the image and explain how you would like to use the image. If it is possible to contact them, give credit to the photographer in the new work.

The manipulation of work if transformed into a new piece may be arguable but with the case of Shepard and his Obama poster, although not settled in court it may now be harder to argue fair use.

Disclaimer; I am not a legal expert of work in the legal profession, I am a photographer and have a keen interest in the area written above. If you need legal advice I would advise contacting a lawyer or solicitor.

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