Fair Use Issues

[parkerbenson]

To what extent does Fair Use apply to Getty Images, speaking hypothetically...

In my friend's case (he really is a friend, it's not me, but this pisses me off), his web designer used an image thought to be public domain, not copyrighted or watermarked, for educational purposes on a section of his website maintained for public education purposes.

For example, if ELI used a picture of a courtroom obtained from the public domain to illustrate what the suit process would look like were Getty to take someone to court.   Does this satisfy Copyright Clause 107, in that:

         1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

EDUCATIONAL HERE

         2. The nature of the copyrighted work

AS YET TO BE DETERMINED, BUT CLAIMED COPYRIGHT AS PART OF A COMPILATION BY GETTY, THOUGH THE COPYRIGHT IS NOT READILY IDENTIFIED, AND THE IMAGE IS GENERIC AS SIMILAR AND/OR NEARLY IDENTICAL IMAGES APPEAR ON GETTY'S SITE AS ROYALTY FREE AND MORE STILL ARE IN THE PUBLIC DOMAIN.  

THIS RAISES THE QUESTION, TO WHAT EXTENT ARE GENERIC IMAGES, OBVIOUSLY DERIVED FROM SIMILAR IMAGES IN CONCEPT, WHILE NOT EXACT DUPLICATIONS, ENFORCEABLE AS COPYRIGHT?

         3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

A SINGLE IMAGE TAKEN FROM PUBLIC DOMAIN BUT CLAIMED TO BE PART OF A COMPILATION REGISTERED BY GETTY

         4. The effect of the use upon the potential market for, or value of, the copyrighted work

THE USE OF THE IMAGE HAD ZERO IMAGE ON THE POTENTIAL MARKET VALUE OF THE COPYRIGHTED WORK, AND THE IMAGE WOULD NEVER HAVE BEEN PURCHASED AS THE WEB DESIGNER SOUGHT OUT ONLY FREE USE PUBLIC DOMAIN IMAGES

THOUGHTS??

[Oscar Michelen]

Ok, I could teach a whole semester at my law school on fair use, which is a legal term of art often misunderstood.  So let me try and o this in a nutshell - the use you describe of the Getty image above is NOT fair use.  Fair use is a defense to copyright so its something you would have to argue and prove if you got sued. Fair use allows certain limited uses of a copyrighted work - criticism, commentary, education, parody, libraries and scholarly works are the most common and prominent "fair uses." Fair use is not "I didn't know it was copyrighted" That's "innocent infringement" which is NOT a defense to copyright infringement it merely helps to lower the damages. Fair use is not "I made no money form the site" While making money is one "commercial" use of a copyrighted work, if the images help promote your website, which is part of your business or your interest, that could be a commercial (and not fair) use of the work.  The wonderful Wikipedia has a very good page on fair use:
if you want a detailed explanation.

http://en.wikipedia.org/wiki/Fair_use