Fair Use?

I got a bit paranoid after my last post. What if I am doing something wrong by using photos from the Getty Villa or Hammer Museum? So I looked up the Fair Use parameters, as set in the 1976 Copyright Act. This is what that body of law says

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 substantiality 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.

I’m arguably not the most unbiased judge of whether my use is Fair Use. Nevertheless, after looking over my two potentially infringing posts, I think a Fair Use defense is plausible.

On (1), my site is certainly nonprofit. I’ve never made a penny out of it, and I never plan to. I also hope that this blog somewhat educational as I try to pass on things that I learned from class or in my readings using it. I also include plenty (maybe too much?) of my own opinions and analysis on the site, so its use of the images is defensibly transformative. I’m not sure what (2) means. On (3), I used a few images from collections that have thousands of objects and probably hundreds of images on their sites. These images are no more or less special than the rest of the photos hosted on the site. The “amount and substantiality of the portion used in relation to the copyrighted work as a whole” is then most probably very small. Finally, on (4), the use of those images on my little-read blog really couldn’t have made any impact on the potential market or value of the photos.

I haven’t ruled out the possibility that I’m being paranoid for no reason since it’s still not clear to me that these photos are copyrighted. I did not see any copyright notices on the sites. Furthermore, one of the institutions, the Hammer Museum, is part of UCLA, a public university/government entity. As works of the U.S. government is not copyright-able, with exceptions, (§ 105) , I’m not sure that the Hammer Museum holds the copyright to its images.

In any case, I’m resolving to be much better about my use of images. I going to keep the photos from the two posts mentioned here because I believe my use of them is covered by Fair Use. Going forward, I’m going to stick with photos that are from “safe” sources (mine, somebody I personally know, nonprofit organizations) or are photos licensed by one of the Creative Commons licenses. (You can search for these by going to http://search.creativecommons.org/.) I’m also going to do a retrospective examination and replace any images that do not belong in one of these categories.

Phew, I hope that satisfies both my pesky conscience and any intellectual property rights lawyer who were lurking for a plankton like me.

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