Digital BW, The Print

jzall wrote:

>--- In DigitalBlackandWhiteThePrint@yahoogroups.com, "Paul Roark"
><paul.roark@v...> wrote:
>  
>
>>Here is another issue concerning the use of images that just came up
>>    
>>
>again
>  
>
>>for me.
>>
>>A painter, who is also an instructor, has asked permission to use my
>>    
>>
>images,
>  
>
>>"as reference for my oil paintings .(for composition value, etc.) not
>>reproducing in any means other than for original oil paintings."  
>>
>>I'm not sure there is any way to stop this when images are on the web.
>>Also, under "fair use" the images probably can be used in the way he is
>>suggesting, although I have not researched this.
>>    
>>
>
>OTOH, a few years ago, Jeff Koons was sued (successfully as I recall)
>for using a photograph from a greeting card as the basis for a
>sculpture. He pretty much 'copied' (rendered in 3D) the scene in the
>photo, which was a man holding a dog while sitting on a park bench.
>
>  
>
An important part of the Koons case was that the court determined his 
work was not protected fair use as it was primarily commercial.

Section 107 of the Copyright act applies:

"The fair use of a copyrighted work, including such use by reproduction 
... for purposes such as criticism, comment, news reporting, teaching 
(including multiple copies for classroom use), scholarship, or research, 
is not an infringement or copyright.""

Four factors are then considered by courts in balancing this:

"1) the purpose and character of the use, including whether such use is 
of a commercial nature or is for non-profit 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."

Ernst's translations of published articles, for example, and providing 
them to the list, almost certainly fall into the fair use provisions. 

Basically, the Supreme Court has used established a judgment of whether 
a use is predominantly commercial:  Jeff Coons.. or protected 
commentary/parody:  the nude Barbie case. 

It's a real world test.  And it makes sense in face of First Amendment 
values of free speech.  The courts will generally allow uses that 
educate, or critique, even if you make money from them. If they didn't, 
how could you ever read things like fair movie or theatre reviews? OTOH, 
if a court finds your purpose is not a protected use, and you are simply 
copying or creating a clearly derivative work in another medium with the 
intent of making $  you're gonna get slammed in all likelihood.

IN your case Paul, can you stop it?  No, one cannot realistically expect 
to STOP mis-appropriation a priori.. BUT, if you have a registered 
copyright, AND the work is clearly derivative, AND the work is not a 
protected fair use (which it doesn't seem to be) AND you discovered the 
images.... You would be entitled to statutory damages.


 
Keith Krebs

"Just some guy," caretaker of the Multiverse's largest EPSON printer 
User Community (highly recommended by Vogon Poets and MegaDodo 
Publications), at:
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and  the Multiverse's largest Canon printer User  Community at:
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"For the rest of you out there, the secret is to bang the rocks together 
guys"