"Fair use" in non-profit newspaper

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  • I am an editor of a small college non-profit newspaper. In our last issue we unknowingly printed a picture taken from a personal website. The picture included the owner's name on the bottom left hand corner. The picture was not alterted other than for a reduction in its size. The owner's name, however was blurred in the process. After inital contact with the owner, a retraction was offered in the next issue for the unintentional printing of his photo, to no satisfaction of the owner. Also the owner believes the blurring was intentional to distort its value, this was also explained, but to no avail. Would this fall under "fair use"?
  • You should find out if your college has general counsel available for you as a student or student publication. They'd definitely be a help, as they can give you legal advice and they are presumably licensed to work in your area. ^_^

    So, nonlawyerly thoughts:

    It would be difficult for anyone to say for 100% certainty whether something is or isn't fair use. One of the difficulties with fair use is that actual determination generally doesn't come to play until there is a lawsuit.

    Here are the factors, though:
    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.

    You should do an analsys to determine whether you believe the use is fair. It's hard to say without more detail.

    The blurring was intentional to distort its value? What does that mean, exactly? I would think for fair use it's a good thing that the photo is blurred- it can't then be used as a replacement for the original photo. Unless he's stating that you're misrepresenting his work in some manner. But it should be pretty obvious, I would think, that a newspaper would not have the same resolution/quality of the original.

    Anyway, if there are actual legal goings-on, see if you have counsel available from your college.
  • Unfortunetly, the owner of the picture is also a student. Any legal counsel I would receive from the university would be available to the owner as well, and as I've been told would become a conflict of interest.

    What I meant by value is that the owner states his photo is being misrepresented, not because of the content of the article attached with the photo, but because of the blurring.

    I dont know exactly how much detail would be needed other than, we place ads in the newspaper which we receive money from, we are classified by the IRS as non-profit, our circulation size is around 6,000, the photo was unintentionally taken from a website and used in an article without receiving permission, the article was not deframatory, or critical in any way, our newspaper is mostly news/entertainment. We did not notice the copyright until the owner called.

    Of course the picture would never had been printed had it been known at the time that we did not have permission, even if legally we could have used it. I would rather print a retraction and have done with it, but under the current circumstances this may not be possible. Because of this, I am looking for very specific information regarding "fair use".

    I've read the definition of "fair use" and the conditions set upon it. But from what I've read it mostly applies to libraries, schools..etc which I don't believe is comparable to a privately run newspaper, even if it's non-profit. If you could point me to any similar court cases or any specifics mentioning a case similar to mine I would be very grateful.

    In risk of making this too long, the only case I've reviewed so far that has some relevance is Kelly vs. Arriba Soft Corp, 280 F3d 934 9th Cir 2002. I don't know if you are familar with it. This dealt with an image search engine that linked to any pictures searched for on the internet. Arriba Soft won the case, but the weight of denying search engines to find information on the internet without first receiving permission from every single owner coupled with the fact that search engines search indescriminately, I believe were huge factors in determining "fair use". Sadly, we do not have such weight on our side. Again, any similar court cases would be appreciated.
  • Still not a lawyer. ^_^; General Counsel said that? That's difficult. You might want to see if there's any legal advice you can get in your area.

    The misrepresentation thing sounds like laws besides copyright may be involved, more below.

    Educational may have a "stronger" case for fair use, but not necessarily (non profit v. profit, etc.). Even thought you were using it for advertising, you're still nonprofit. I don't know if it's the specific use in the ad or the overall status of the paper, though. Hopefully someone else will chime in.

    Kelly v. Arribasoft was the case I was thinking of. Actually, here's a good summary of what was found for fair use:
    Thumbnails are transformative.
    There are other related cases on that same website that might be informative for you, at least one directly related to newspapers if I recall correctly (although it was news related, not advertising related).

    I would argue, that like thumbnails, the fact that his picture was blurred is actually more for fair use then not for fair use. Although there is a right of integrity and attribution, I think that most photos don't qualify for that protection, and I think you can still claim fair use. You didn't misrepresent the author's work in an obvious way, if the author's name wasn't there and if the blurring was part of the scaling/newspaper process.

    He may be arguing that his moral rights were violated (which sounds like what he's saying with the whole misrepresentation thing), but you can still argue fair use for the copyright parts of the situation. But defamation laws and some state laws might allow the person to sue if they think their reputation has been affected. So that's not necessarily copyright law, but other laws. That's one of the reasons that you should probably try to talk to a lawyer licensed to practice in your area. But you might want to look those up as well- defamation, reputation, and moral rights in your locale.
  • It's been over a week since the last post, so I hope your troubles have been resolved. If not, I hope this helps.

    This post is about legal counsel.

    If your paper or you as a representative of that paper are being sued or being threatened with a lawsuit, your school should be providing you with legal representation. It shouldn't matter who is suing or threatening to sue. If the school feels that a conflict of interest exists, then the school needs to hire two lawyers instead of refusing to help both.

    Think about this hypothetical example. Student A gets a bad grade from Student Teaching Assistant B. Student A decides to sue STA B for sexual harassment, even though no sexual harassment actually occured. B was acting as a representative of the school and deserves protection. Would B be denied legal protection because A is also a student?

    You are acting in an official capacity as a representative of a college-sponsored organization. As far as I can tell, the student was not representing any college-sponsored organization or activity and has no more right to legal counsel than a non-student.

    You don't say who told you about the conflict of interest. Don't accept the word of anyone other than legal counsel.
  • This post is about fair use.

    I am not a lawyer. As cjovalle states, no one can make a definitive statement on fair use in a particular situation unless it goes to trial.

    However, fair use applies to everyone, even commerical organization, although commercial organizations are handicapped by the fact that factor 1 works against them in many, but not all, cases.

    You need to make your own fair use determination. However, this is the fair use determination I would make based on the information you have provided.

    1. Clearly non-commercial. Perhaps not educational, but certainly either informative or entertainment, depending on the nature of the article. As long as its non-commerical, I think this factor works in your favor.

    2. Creative vs. factual. I personally disagree with court interpretation of this factor which appears to say that a New York Times fiction bestseller deserves more protection than a New York Times non-fiction bestseller. I don't believe that non-fiction is non-creative. However, I agree that more creative material deserves more protection.

    So, is the photo creative? Was it intended to be art? Is it merely a "factual" record of a student event? Is the student a photography student or just a regular person with a camera?

    I need more information, but my gut feeling is that this factor is either neutral or works in your favor. If the photo was clearly intended to be art, then this factor works against you. A "factual" photo also might work against you if the photographer has training in the field.

    Because I have limited information, I'm going to assume that this factor works against you.

    3. It's the whole photo, so this probably works against you. However, you might be able to say that the photo was a small part of a web site or photo gallery. However, I'm going to assume that this factor works against you.

    4. Is the photographer trying to sell the photo? If the photographer does try to sell the photo, does its publication in the school newspaper diminish the photographer's chances? I don't see how the value of the photo is being diminished in any way by its publication in the student newspaper. The photographer appears to be claiming that the photographer, not the photo, is being damaged. That has nothing to do with fair use.

    In my opinion, based on the information that I have, the first and fourth factors are clearly in your favor. I believe that in your situation these factors outweigh the other two. However, I am not a lawyer and even if I were, you need to make your own determination.

    I'm out of time, but I might have something more to say about other aspects of your situation later.

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