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From Rebecca Tushnet’s 43(B)log:
Brammer took a time-lapse photo of the Adams Morgan neighborhood of Washington, D.C., at night, then posted it on image-sharing websites as well as his personal website. Violet Hues created a website intended to be used as a reference guide providing information about the local area for filmmakers and other attendees of a festival it ran and used a cropped version of Brammer’s photo on its website. Violent Hues removed the photo after receiving a C&D.
. . . .
Brammer sued for copyright infringement and for removal and alteration of CMI under 17 U.S.C. § 1202, though he abandoned the latter claim. The court found that the use was fair. First, the use was transformative in function and purpose: Brammer’s purpose was promotional and expressive, while Violent Hues’ purpose was informational. The use was also noncommercial, because it wasn’t done to advertise a product or generate revenue. It was also in good faith: Violent Hues’ owner found the photo online “and saw no indication that it was copyrighted.”
Nature of the work: “[I]f the disputed use of the copyrighted work ‘is not related to its mode of expression but rather to its historical facts,’ then the creative nature of the work is mitigated.” The photo had creative elements, but was also “a factual depiction of a real-world location,” and was used purely for its factual content. And the work was previously published, favoring fair use.
Amount and substantiality of the portion used: it was cropped about in half, which was no more of the photo than was necessary to convey the photo’s factual content and serve Violent Hues’ informational purpose, also weighing in favor of fair use.
. . . .
A transformative and non-commercial use is unlikely to cause market harm; Violent Hues didn’t sell copies of the photo or generate any revenue from it. It didn’t provide a market substitute for the photo, especially since it only used approximately half of the photo.
Link to the rest at Rebecca Tushnet’s 43(B)log
PG’s notes for indie authors:
- Make certain that you include a copyright notice in each version of your book. As the OP indicates, while a copyright comes into being when you create your book, many people feel the absence of a copyright notice means the author is not claiming a copyright for the book. The Book Designer has several examples of copyright notices here.
- As the OP also indicates, fair use is an exception to the protection given to an author by copyright statutes. Under the fair use doctrine, third parties may use parts of the copyrighted materials so long as that use falls under the fair use exceptions.
- Here’s what the United States Copyright Office says about fair use:
Section 107 calls for consideration of the following four factors in evaluating a question of fair use:
Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.
In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.
4. It’s always a good idea to formally register your copyright with the US Copyright Office. Go here for more information.
5. The information in this post only applies for copyrights in the United States. If you publish your book in countries other than the United States, while there may be reciprocal recognition of rights for an author to protect a work via copyright, the standards governing Fair Use may well be different in a country other than the US.