Copyright and fair use

Copyright and fair use

Most images and legends included on this website are protected by copyright. Their reuse elsewhere may infringe copyright law.

I try to attribute the material fully; I use it in good faith under the fair-use privilege.

My understanding of fair use comes from Jonathon Band’s analysis of four fair-use decisions by the U.S. Court of Appeals in 2006 and 2007 1. Band is an international authority on the laws governing intellectual property and the internet. I also draw on a recent commentary by Jason Schultz 2 who is also an expert on fair use and the internet.

(a) In his introduction Band says: ‘In the absence of recent decisions applying fair use in the educational context, a strong current of fair use pessimism has developed on many college campuses. This restrictive view of fair use has a number of sources. First, consistent with their short term economic interest, copyright owners have consistently misstated the scope of the fair use privilege in a wide variety of fora. Second, certain academics have overstated the fragility of fair use in an effort to advance their theories of copyright law or their legislative proposals. Third, some of the fair use guidelines … are three decades old, and thus do not reflect the expansion of fair use over time.’

‘Three recent fair use decisions by federal circuit courts … demonstrate that fair use pessimism, especially in the educational context, is ill founded. In all three cases, the courts found commercial uses to be fair [because] … transformative. In two of the three cases … the courts gave little weight to the plaintiff’s loss of licensing revenue.’

(b) I use images and legends on secondary pages in this website for education, research and scholarship. I analyze the symbolic, psychological meaning of legends and fairy tales (and also of visual art). My writing is seriously argued and includes original thought; it serves its educational function online: its readers are scholars or clinicians or, while they read it, students.

With regard to scholarship and education, Band notes that in September, 2007 the Tenth Circuit made the following expansive statement about fair use: ‘the fair use defense permits scholars and teachers to quote extensively from [a copyrighted] book and even reproduce entire sections for the purpose of commenting on (say) the parallels between the narrator’s literal and figurative vision. Because the purpose of the fair use defense is to “afford considerable ‘latitude for scholarship and comment,’ ” the [Supreme] Court has described it as a “guarantee of breathing space within the confines of copyright” ‘ Golan v. Gonzales, 501 F.3d 1170 (10th Cir. 2006).

(c) My use of the material is transformative because the material is both ‘repurposed’ and ‘recontextualized’.

In 1994 the Supreme Court said that use is transformative when it does not ‘merely supersede the objects of the original creation [but] instead adds something new, with a further purpose of different character, altering the first with new expression, meaning, or message’ Campbell v. Acuff-Rose Music, 510 U.S. 569, 579 (1994).

Band notes that ‘the transformative nature of the use increasingly appears to be the most important criterion, swallowing the other factors. However, the notion of the kind of use that a court will consider transformative is far broader than the term “transformative” suggests. While the term “transformative” implies that the work itself has been changed, i.e., the user has made what would be considered to some extent a derivative work, both Perfect 10 v. and Bill Graham Archives v. Dorling Kindersley make clear that repurposing a work or placing it in a new context may be sufficient to render a use transformative’

I use images and legends to evoke a relevant psychological response which makes specific, associated, psychoanalytic content more vivid and thus more psychologically accessible. Sometimes I use images to make biological theory and artistic theory more accessible. I understand all of this to fit the court’s description of fair use ‘transformatively different from [the material’s] original expressive purpose… [use that] enhances the reader’s understanding of the .. text’ Bill Graham Archives v. Dorling Kindersley, 448 F.3d 615, 609-10 (2d Cir. 2006).

I have chosen each image or legend because its particular quality is psychologically evocative of the verbal content it illustrates. I understand this to fit the court’s description of fair use that has ‘a genuine creative rationale for borrowing [the] image, rather than using it merely to get attention or to avoid the drudgery in working up something fresh’ Blanch v. Koons, 467 F.3d 255 (2d Cir. 2006).

In my use each image and legend is highly integrated with other material. Band notes that ‘the more integrated a work is with other material, the stronger the claim of fair use.’

I understand my use to fit the court’s description of fair use from Perfect 10 v., 487 F.3d 721 (9th Cir. 2007), as quoted by Band: ‘ “more transformative than a parody,” the quintessential fair use, “because [the work] provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.” ‘

(d) I use the most vivid version I can find of each image or legend because that version is the most psychologically evocative. For the same reason I relate the whole legend rather than using excerpts from it. I understand this use to be encompassed by the court’s affirmation that sometimes ‘copying the entirety of [the] work is … necessary to make a fair use of [it]’ Bill Graham Archives v. Dorling Kindersley, 448 F.3d 613 (2d Cir. 2006).

Band notes that ‘the amount and substantiality of the portion used has less relevance, particularly if the use is transformative.’

(e) To my knowlege my use of an image or legend does not result in a significant loss of licensing revenue to the owner of the copyright.

I benefit from the transformative use of images and legends (on secondary pages) because I also offer my psychoanalytic services on the same website. The Court of Appeals affirmed that when the use of ‘images is transformatively different from their original expressive purpose … a copyright holder cannot prevent others from entering fair use markets merely by developing or licensing a market for parody, news reporting, educational, or other transformative uses of its own creative work. Copyright owners may not preempt exploitation of transformative markets’ Bill Graham Archives v. Dorling Kindersley, 448 F.3d 615 (2d Cir. 2006). In this context the market for psychoanalysis is clearly transformative.

Band comments that ‘the existence of a licensing market for a work does not defeat fair use, provided that the use is transformative.’

(f) Band concludes: ‘Many rightsholders might not agree with the [U.S. Court of Appeals’] decisions; indeed trade associations representing the major content providers [Motion Picture Association of America, the National Music Publishers’ Association, the Recording Industry Association of America, the American Society of Media Photographers, the Picture Archive Council of America, the British Association of Picture Libraries and Agencies, Stock Artists Alliance, the Graphic Artists Guild, American Society of Picture Professionals, and National Press Photographers] all filed amicus briefs advocating positions [which were] ultimately rejected by the Perfect 10 v. court. [Despite the legal efforts of all these trade organizations] the [U.S Court of Appeals’] decisions represent the current state of fair use jurisprudence, and they demonstrate strong judicial support for the [fair use] doctrine.’

If anyone can help with attributions or wishes me to remove images or legends please contact me immediately.

1Educational fair use today. Jonathan Band, Association of research libraries, December 2007, online.

2Copyright, fair usage, and the struggle against online image misappropriation. Jason Schultz, ‘LawGeek’, December 2007, online.