Letter help: Fair Use

[Book cover shake down]

I had a single allegedly infringing image on my blog that I received a standard notice/demand for payment from Getty. The image was a part of the book cover from Freakonomics (it was clearly still the book cover as it has a sticker "Now a major movie" visible). The article on my blog is (now with no image) a quick review of the movie of the same name. They are claiming copyright not on the book cover but on the apple that's actually an orange (search Google images for Freakonomics). This is clear from their version of the copyrighted image which is not the book cover.

I would hope that this falls under fair use. I searched the forum but did not find a similar issue before. Any thoughts on the wording of a letter back to them?

Many thanks to the authors of this website and the forum users. Needless to say I had that sinking feeling many of us seem to have experienced before...

Edit: Just looked again - the sticker actually says "New York Times Bestseller"

[lucia]

I'm going to stay away from the fairuse issue. I hope our laws see that as fair use too-- but I'm not a lawyer.  But some additional specifics might be useful.

Are they claiming you infringed this specific image.
http://www.gettyimages.com/detail/photo/apple-orange-hybrid-royalty-free-image/148439467

Or are they pointing to a different image at Getty?

I ask because I notice
a) Freakonomics is published in 2011.
b) the image shows © 2012 Michal Baran
c) The apples, while similar aren't the same.

But (a) and (b) would suggest that *if* there is a copyright issue, it's Michal Baran who *might* be violating. So.. is it a different apple? Or that one?  (You'll want to do a little ground work on this.)

[Book cover shake down]

No, they are claiming this one: http://www.gettyimages.com/detail/photo/green-apple-with-orange-slices-inside-high-res-stock-photography/215760

The image on the book has the background removed and text etc. added. I am using part of the book cover image with the text, not the exact image as linked. Thanks.

[lucia]

Ok. That at least looks like the same image and may not suffer from the flaw in date!  Other than that, I'm not the one to advise on fair use. I would hope a photo of the entire cover would be fair use.  I would hope anything that made it clear that you just took a photo of the cover of the book seems like fair use to me-- but I'm not an IP attorney. So, we need to wait for the more legally qualified to say what they think.

[Book cover shake down]

Comparing the two closely, it's definitely the same one that's used on the cover.

[Robert Krausankas (BuddhaPi)]

I think we need to see what you actually used and what they are claiming yuo used, as Lucia has eluded to "fair use" is a very grey area..if you are "reporting on, commenting on" and not profitting from" you might be okay...is your site serving any ads? can you link to the cover that might be elsewhere?

[Book cover shake down]

My site does not serve ads. A google image search (https://www.google.com/search?num=10&hl=en&safe=off&site=&tbm=isch&source=hp&biw=1599&bih=824&q=freakonomics) brings up multiple copies of the image. Mine is similar to the fourth image of the search (New York Time Bestseller sticker), but the blog software I used actually cropped the image down a little. The sticker is still visible, and the title above clearly states that it's a review of the movie of the same name. I'd be more than willing to post the image here of what it used to look like, along with the blog content (or the notice I received).

Thanks for replying Robert.

[Robert Krausankas (BuddhaPi)]

Well after seeing that image, I know I would politely tell them to pound salt, thats the site is a review site, where yourself and users comment on book reviews ect...the image in question was of the book cover, even tho they claim to own a portion of it.. I think fair use would apply here...hopefully Oscar will chime in as he's the expert...

[Greg Troy (KeepFighting)]

I agree with Robert, in my non-lawyer opinion this would fall under fair.

http://www.copyright.gov/fls/fl102.html

Well after seeing that image, I know I would politely tell them to pound salt, thats the site is a review site, where yourself and users comment on book reviews ect...the image in question was of the book cover, even tho they claim to own a portion of it.. I think fair use would apply here...hopefully Oscar will chime in as he's the expert...

[Book cover shake down]

I agree with Robert, in my non-lawyer opinion this would fall under fair.

http://www.copyright.gov/fls/fl102.html

Well after seeing that image, I know I would politely tell them to pound salt, thats the site is a review site, where yourself and users comment on book reviews ect...the image in question was of the book cover, even tho they claim to own a portion of it.. I think fair use would apply here...hopefully Oscar will chime in as he's the expert...

I would clarify that it's not a review site, but rather a site about analytics and data, hence the Freakonomics review. The blog is attached to my consulting website (the company has little revenue).

[Greg Troy (KeepFighting)]

I would still think that if the images is on the same page as the review and it is part of the review then it would be considered fair use, but again there is a large grey area and I am not a lawyer.

I agree with Robert, in my non-lawyer opinion this would fall under fair.

http://www.copyright.gov/fls/fl102.html

Well after seeing that image, I know I would politely tell them to pound salt, thats the site is a review site, where yourself and users comment on book reviews ect...the image in question was of the book cover, even tho they claim to own a portion of it.. I think fair use would apply here...hopefully Oscar will chime in as he's the expert...

I would clarify that it's not a review site, but rather a site about analytics and data, hence the Freakonomics review. The blog is attached to my consulting website (the company has little revenue).

[Book cover shake down]

Thank you all. I think I will write back (registered mail presumably?) stating their automated image matching did not take into account that I was showing the book cover and that this use could be considered fair use - that it is normal for the book cover to be shown when doing this. I will then state that I consider this notification closed. Anything else? It would be interesting to hear from anybody else as well as it pertains to fair use.

[Robert Krausankas (BuddhaPi)]

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

The purpose and character of the use, including whether such use is of 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
The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

From: http://www.copyright.gov/fls/fl102.html

Getty will claim that fair use does not apply, and still demand payment, bottom line is they want your money however they can get it..they don't always play by the rules, and you must also rememeber that the person sending the letter is not a qualified legal person, they are just some lousy clerk sitting in a cubicle of many, spouting out the corporate garbage..

[Greg Troy (KeepFighting)]

Getty will most likely say that they do not consider it fair use so be prepared for that, Getty doesn't care about any of the facts they only want the money.  I would send the letter via mail, I sent all of my correspondence registered with return signature because I wanted proof they got it and who.  Please keep us posted as to what happens.

Thank you all. I think I will write back (registered mail presumably?) stating their automated image matching did not take into account that I was showing the book cover and that this use could be considered fair use - that it is normal for the book cover to be shown when doing this. I will then state that I consider this notification closed. Anything else? It would be interesting to hear from anybody else as well as it pertains to fair use.

[Greg Troy (KeepFighting)]

HAHA we were posting at the exact same time, great minds think a like.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

The purpose and character of the use, including whether such use is of 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
The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

From: http://www.copyright.gov/fls/fl102.html

Getty will claim that fair use does not apply, and still demand payment, bottom line is they want your money however they can get it..they don't always play by the rules, and you must also rememeber that the person sending the letter is not a qualified legal person, they are just some lousy clerk sitting in a cubicle of many, spouting out the corporate garbage..