Just Because Something Is Used For Profit, It Can Still Be Fair Use

from the so-the-court-says dept

When it comes to copyright, content owners all too often believe it gives them a lot more control than it really does. For example, there's a belief that no one can ever use the content under "fair use" rules if it's for a commercial for-profit venture. One of the issues with fair use (which some in the entertainment industry continue to pretend doesn't exist) is that people often misread the four tests of fair use to believe that any commercial usage is not covered by fair use. Larry Lessig is pointing to an Appeals Court ruling highlighting why this isn't always the case. In the specific case, the Bill Graham Archives sued a book publisher for publishing a book about the Grateful Dead, using images of concert posters that were owned by the Archives. While the pictures are clearly being used for a commercial work, the court found that it was fair use. Specifically, they note that since the images are small and used within the context of descriptions about the history of the band, it's fine for fair use. It seems like a reasonable decision -- but could worry some copyright holders who freak out any time anyone uses their works in any way.

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  1. identicon
    Annie Frisbie, 19 May 2006 @ 12:14pm

    it's not about what's fair...

    Even if you can prove fair use in a court-of-law, can you afford to? Say you use an image of Mickey Mouse in your book or documentary on the history of artwork featuring mice. You are probably completely justified in using this image, because the image is one among many, and because the context is appropriate. As long as you're not trying to sell the book based upon its having an image of Mickey Mouse, you can argue fair use.

    BUT - that doesn't mean that Disney, notoriously litigious over the use of its creations, won't sue you & your publisher or distributor just to tie you up in court and keep your book from going to print, or your film from being exhibited. It's not about winning or losing for them - it's about using the courts as a bludgeon to stifle true freedom of expression. It's about power, not what's right.

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