Cover art fair use?
Talesman
either on-line or via catalog is it lawful to scan and post/print
the cover/jacket to depict the issue? Ditto for a record album, etal?
Is that considered fair use? If so, any cases on-point someone
could direct me to?
I see many auction houses put together a catalog of paintings,
lithographs, jewelry, etc. much of which are still under copyright
protection and which are not being sold directly by the author/copyright
holder nor was consent obtained. I figure these folks ought to
know what is lawful and what isn't - but you never know <g>
Thanks in advance for your replies.
Barry Margolin
"Talesman" <tales...@earthlink.net> wrote:
> If one wishes to sell an item such as a book or magazine
> either on-line or via catalog is it lawful to scan and post/print
> the cover/jacket to depict the issue? Ditto for a record album, etal?
> Is that considered fair use? If so, any cases on-point someone
> could direct me to?
IANAL, but I would guess that scanning the cover and displaying it on a
web page would hardly ever be fair use. While it may be just a tiny
portion of the book, as far as the artist is concerned it's the entire
work. And fair use makes reference to the purpose of the excerpt,
allowing things like criticism and educational uses, but marketing seems
way out of bounds.
> I see many auction houses put together a catalog of paintings,
> lithographs, jewelry, etc. much of which are still under copyright
> protection and which are not being sold directly by the author/copyright
> holder nor was consent obtained. I figure these folks ought to
> know what is lawful and what isn't - but you never know <g>
How do you know that consent wasn't obtained? I suspect that reputable
auction houses do this. Are you talking about online auctions like
Ebay? You're lucky if they person actually has what they're offering
there, never mind consent for the image.
--
Barry Margolin, bar...@alum.mit.edu
Genuity, Burlington, MA
Jeffrey Siegal
> IANAL, but I would guess that scanning the cover and displaying it on a
> web page would hardly ever be fair use. While it may be just a tiny
> portion of the book, as far as the artist is concerned it's the entire
> work.
If it were a small, low resolution image, this might not be true.
James White
> If one wishes to sell an item such as a book or magazine
> either on-line or via catalog is it lawful to scan and post/print
> the cover/jacket to depict the issue? Ditto for a record album, etal?
> Is that considered fair use? If so, any cases on-point someone
> could direct me to?
IANAL. You're probably wondering why no lawyer has responded to you. It's
because it's obvious you haven't and won't make any effort to read the
law/rules yourself and you want the FREE attorney to dig out the cites for
you that verify whatever they say.
The general answer to your question, as I understand it, though is: Of
course it's fair use--why would anyone think it wasn't? As long as you're
selling originals the copyright holder will be flattered you're pushing
their work. You clearly haven't duplicated it for your benefit to steal from
them.
--
James E. White
Inventor, Marketer, and Author of "Will It Sell?
How to Determine If Your Invention Is Profitably Marketable
(Before Wasting Money on a Patent)" www.willitsell.com
John Berryhill Ph.D. J.D.
> selling originals the copyright holder will be flattered you're pushing
> their work.
IAL, and can vouch for the fact that the emotional state of copyright owners
is not as predictable as one might imagine.
Is the cover copyrighted? Yes.
Are you copying it? Yes.
Does a copyright allow the owner to sue people who copy stuff? Yes.
Is this copying being done for the purpose of literary criticism,
scholarship, or the like? No.
I like the comment about a small, low-resolution scan. But the usual answer
to a question that begins with "can I copy" is "no".
kms...@ix.netcom.com
This has been discussed on the CNI-Copyright list, archives available
(search Google). IIRC, the consensus was that use of thumbnails for
sale of goods would be acceptable, though I don't recall the specific
rationale (fair use, or other doctrine).
--
Karsten M. Self <kms...@ix.netcom.com> http://kmself.home.netcom.com/
What part of "Gestalt" don't you understand? There is no K5 cabal
http://gestalt-system.sourceforge.net/ http://www.kuro5hin.org
Barry Margolin
"John Berryhill Ph.D. J.D." <jo...@johnberryhill.com> wrote:
> I like the comment about a small, low-resolution scan. But the usual answer
> to a question that begins with "can I copy" is "no".
I agree. A poor copy is still a copy. I suspect that a coloring-book
version of the Mona Lisa would be considered infringing (ignoring, of
course, that the Mona Lisa's copyright has long since expired, if there
even was copyright at the time of Da Vinci).
Dave
owner might not object to the use, does not mean you have the right to use
it if they do.
"James White" <james-...@willitsell.com> wrote in message
news:hVjB6.170801$W05.32...@news1.rdc1.mi.home.com...
Jeffrey Siegal
> > I like the comment about a small, low-resolution scan. But the usual answer
> > to a question that begins with "can I copy" is "no".
>
> I agree. A poor copy is still a copy.
I wasn't suggesting otherwise. However, one of the four factors to be
used in fair use analysis is the "the amount and substantiality of the
portion used in
relation to the copyrighted work as a whole." A small, low-resolution
image might be viewed more favorably in this sense.
Lance Purple
Won't factor 4, "the effect of the use upon the potential market" also be
in favor of fair-use? A low-res image of the cover art isn't likely to
displace sales of the actual artwork; and putting it in the catalog will
presumably improve the market for used copies of books with that artwork
on the cover. Hence, the overall economic effect is nil or even a slight
benefit to the artist (by selling the used books more quickly, they are
more scarce; so the sale of new copies increases; so that artist is more
likely to get commissions for new artworks.)
IANAL (and the original poster should consult one if they're concerned
about being sued), but I don't see how this is any different from used
book stores displaying the book in a shop window.
--
,---------------------------------------,
/ Lance Purple (lpurple at io dot com) /
'---------------------------------------'
Emma Anne
> > As long as you're
> > selling originals the copyright holder will be flattered you're pushing
> > their work.
>
> IAL, and can vouch for the fact that the emotional state of copyright owners
> is not as predictable as one might imagine.
>
Very true. Just because the copyier thinks the copyright holder
*should* like the idea doesn't mean she will. And it's up to the
copyright holder, absent fair use.
simon
Lance Purple wrote:
> Jeffrey Siegal <j...@quiotix.com> wrote:
> >Barry Margolin wrote:
> >> > I like the comment about a small, low-resolution scan. But the usual
> >> > answer to a question that begins with "can I copy" is "no".
> >> I agree. A poor copy is still a copy.
> >
> >I wasn't suggesting otherwise. However, one of the four factors to be
> >used in fair use analysis is the "the amount and substantiality of the
> >portion used in relation to the copyrighted work as a whole." A small,
> >low-resolution image might be viewed more favorably in this sense.
>
> Won't factor 4, "the effect of the use upon the potential market" also be
> in favor of fair-use? A low-res image of the cover art isn't likely to
> displace sales of the actual artwork; and putting it in the catalog will
> presumably improve the market for used copies of books with that artwork
> on the cover. Hence, the overall economic effect is nil or even a slight
> benefit to the artist (by selling the used books more quickly, they are
> more scarce; so the sale of new copies increases; so that artist is more
> likely to get commissions for new artworks.)
Unless the book (original question) is still available new, in which case you
are affecting the market for the work.
Jeffrey Siegal
> Very true. Just because the copyier thinks the copyright holder
> *should* like the idea doesn't mean she will.
Reminds me a lot of Napster.
Talesman
"Lance Purple" <lpu...@fnord.io.com> wrote in message news:8DFB6.149316$lj4.4...@news6.giganews.com...
One thing I did learn in my reading, that anyone can display their copy at
any one location at a time. No copy has to be made to display the item
in a shop window.
Talesman
----- Original Message -----
From: "James White" <james-...@willitsell.com>
Newsgroups: misc.int-property
Sent: Thursday, April 12, 2001 11:33 AM
Subject: Re: Cover art fair use?
> >Talesman wrote
> > If one wishes to sell an item such as a book or magazine
> > either on-line or via catalog is it lawful to scan and post/print
> > the cover/jacket to depict the issue? Ditto for a record album, etal?
> > Is that considered fair use? If so, any cases on-point someone
> > could direct me to?
> IANAL. You're probably wondering why no lawyer has responded to you. It's
> because it's obvious you haven't and won't make any effort to read the
> law/rules yourself and you want the FREE attorney to dig out the cites for
> you that verify whatever they say.
You having a bad day, or are you always a butthole?
You have no idea how much reading and research I have done. I thought
I'd ask the pros who do this for a living for the nuance of fair use, which seems
to be murky, at best.
> The general answer to your question, as I understand it, though is: Of
> course it's fair use--why would anyone think it wasn't? As long as you're
> selling originals the copyright holder will be flattered you're pushing
> their work. You clearly haven't duplicated it for your benefit to steal from
> them.
Looks like your guess was totally shot down by those with knowledge.
Lance Purple
>"Lance Purple" <lpu...@fnord.io.com> wrote:
>> IANAL (and the original poster should consult one if they're concerned
>> about being sued), but I don't see how this is any different from used
>> book stores displaying the book in a shop window.
>
> One thing I did learn in my reading, that anyone can display their copy
> at any one location at a time. No copy has to be made to display the
> item in a shop window.
Hmm. Here's a wierder example that comes to mind:
Imagine a hip music store, with a fleet of "shopmobiles", toy cars fitted
with web-cams and remotely controlled via a web interface. Web users can
drive these around a little track in the store, look at actual CDs inside
display cases, then fire a bar-code laser at the CDs to purchase them and
have them delivered to the customer's home.
(This isn't too far-fetched. There are already model railroad clubs with
layouts you can remotely control from the web: as well as an observatory
with a robotic telescope that can be aimed by web users.)
Would the web-cam feeds infringe the display rights of the album-cover
artists? I'd -hope- it'd be treated as a fair use, but IANAL...
Ernest Schaal
lpu...@fnord.io.com wrote on 4/14/01 1:04 PM:
The obvious solution would be to ask the record company for permission
to post the cover art. If they give you permission, there's no worry about
whether or not it is fair use. If they don't give you permission, it gives
you valuable information about the type of relationship you would have with
that company.
James White
> You have no idea how much reading and research I have done. I thought
> I'd ask the pros who do this for a living for the nuance of fair use,
which seems
> to be murky, at best.
You been to Shepard's or Westlaw to dig out the cites? "Fair use" will
always be murky, that's a given.
> Looks like your guess was totally shot down by those with knowledge.
On the contrary. I saw no one shoot it down--please cite the specifics where
it was and the credentials of those who you suppose shot it down. Thanks.
I will continue to operate KNOWING that using an image (not a copy) of an
item (regardless of patent, copyright, whatever "protection") for purposes
of legally selling that item will not get me in trouble. That doesn't mean,
of course, that a butthole that wishes to sue for a perceived slight, or an
attempt to increase their royalties to "secondary sale" won't.
--
Lance Purple
True, but what about the underlying issue. Is it infringing to display
the actual CDs in the store? IANAL, but I assume not, since every record
store I've ever visited does so.
OK, what about displaying digital images of the same CD covers on that
store's website? I can't find any cases that discuss the issue, other
than Arriba vs Kelly which is still under appeal.
If that's infringing, what about telepresence cameras roaming the actual
store? Customers roaming the store in person, but looking at CDs through
a camcorder lens? Prosthetic eyeballs which temporarily store imagery
on a RAM chip for conversion into optic nerve impulses?
I guess the ultimate question is: which sorts of recording devices along
the optical path infringe the display right, and do they exceed fair use?
Again, IANAL, and I welcome comments from anyone who is (or is not).
Lee Hollaar
>True, but what about the underlying issue. Is it infringing to display
>the actual CDs in the store? IANAL, but I assume not, since every record
>store I've ever visited does so.
17 USC 109(c) --
Notwithstanding the provisions of section 106(5) [the exclusive right of
public display], the owner of a particular copy lawfully made under this
title, any person authorized by such owner, is entitled, without the
authority of the copyright owner, to display that copy publicly, either
directly or by the projection of no more than one image at a time, to
viewers present at the place where the copy is located.
>OK, what about displaying digital images of the same CD covers on that
>store's website? I can't find any cases that discuss the issue, other
>than Arriba vs Kelly which is still under appeal.
Certainly not covered by 17 USC 109(c).
Talesman
<kms...@ix.netcom.com> wrote in message news:gbn5b9...@kmself.nntp.ix.netcom.com...
Bruce Hayden
> True, but what about the underlying issue. Is it infringing to display
> the actual CDs in the store? IANAL, but I assume not, since every record
> store I've ever visited does so.
Probably not infringing.
> OK, what about displaying digital images of the same CD covers on that
> store's website? I can't find any cases that discuss the issue, other
> than Arriba vs Kelly which is still under appeal.
The difference here is that the digital image is a separate copy.
For any number of reasons, you can display a copy that you have
legitimately purchased. However, the digital image is not the copy
that you purchased, but another copy of the work that you have not.
> If that's infringing, what about telepresence cameras roaming the actual
> store? Customers roaming the store in person, but looking at CDs through
> a camcorder lens? Prosthetic eyeballs which temporarily store imagery
> on a RAM chip for conversion into optic nerve impulses?
A strong case for fair use (IMHO).
> I guess the ultimate question is: which sorts of recording devices along
> the optical path infringe the display right, and do they exceed fair use?
> Again, IANAL, and I welcome comments from anyone who is (or is not).
My guess is that the analysis would be whether or not the copyright
owner is getting a second bite at the apple, and how minimal
the reproduction is.
What I mean by the second bite at the apple is that when you
purchase the CD, you purchase the cover too. Any attempt to
leverage display of this exact copy into a second potential
infringement would be (IMHO) double dipping.
Your roving telepresence is the opposite end of this - though
technically the images of the CD jackets may be infringement
of some sort (reproduction if nothing else), it is inadvertent
and I would thus think that the fair use factors would cut
strongly against infringement.
--
--------------------------------------------------------------------
The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 2000 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
--------------------------------------------------------------------
Bruce E. Hayden bha...@acm.org
Phoenix, Arizona bha...@ieee.org
bha...@copatlaw.com
Bruce Hayden
> One thing I did learn in my reading, that anyone can display their copy at
> any one location at a time. No copy has to be made to display the item
> in a shop window.
Which is why it is fundamentally different from the case
where a new "copy" is made in order to display such on a Web page.
John Berryhill Ph.D. J.D.
"Jeffrey Siegal" <j...@quiotix.com>
> > > I like the comment about a small, low-resolution scan.
>A small, low-resolution
> image might be viewed more favorably in this sense.
Yes, that's why I said I "liked" it, and there is case law in support of the
general idea there, in connection with a graphical search engine which was
thumbnailing contents of image files at other websites.
But, to bottom line this thing:
"A guy walks into a usenet newsgroup on copyright law and asks if he can copy
something..."
Okay, write me the punchline for that starter....
John Berryhill Ph.D. J.D.
"Dave" <write...@usa.net>
> Your confusing consent with fair use.
No he's not. He's being practical, since the original question was a
practical question. If someone says, "can a human being scale the exterior
of the empire state building without using a rope?", a perfectly fine answer
is to say, "you can take the elevator instead".
As a practical matter you are almost never going to get a lawyer (and IAL) to
say, "Oh, yes, doing <x> is fine." The reason is that every lawyer knows
that even if <x> really is fine under some circumstances, it is almost never
possible to embrace all of the potentially relevant circumstances in a single
breath without resorting to the kind of syntax or special terms that people
can't stand to hear from lawyers. And even at that, you'll note that I said
"almost never".
And every lawyer knows they can't be sued for malpractice for saying, "Doing
<x> might not be a good idea."