Digital BW, The Print

"Fair Use" is a special-use exemption to the Copyright Act. It's purpose is
primarily to allow educational and other institutions such as libraries,
research, and news organizations some leeway in using copyrighted works for
educational, research and reporting purposes. But even here, the
reproduction of a work in toto is generally considered by the courts to be
infringement and not "fair use."

The public tends to want to give "fair use" a far broader definition than
Congress intended, and the courts have generally maintained a narrow
definition of this exemption to the copyright.

Using the "fair use" exemption as an excuse to copy an image as was done in
this case may not result in any legal action against the offender, but that
doesn't mean that the action isn't a violation of the owner's copyright. The
action that prompted this discussion almost certainly would fall outside the
definition of "fair use" as defined by Congress and the courts in a growing
body of case law (in my humble and non-legal opinion).

Check it out. There's a ton of info on the web describing and discussing the
limits of "fair use."

Tom Keesling

Jerry wrote:

>I'd never worry about copying an old postcard for my own purposes. How
>would you ever track down a copyright?

Jerry, et al

The legal experts will always tell you to assume a work is copyrighted
unless you know for sure that it isn't. And, legally, you should at least
make an effort to track down the owner whenever you believe a work you are
interested in using might be copyrighted. There are Web-based tools
available for doing this, I believe.

Your comment raises the published vs. unpublished aspect of copyright, in
addition to the copyright term itself. I would strongly urge you and
everyone involved in or even considering using someone else's work to review
and understand the information summarized at
http://cidc.library.cornell.edu/copyright/. This table is by far the best
summary of the ever-changing and convoluted U.S. copyright laws that I've
been able to find on the Web. It's one major shortcoming is that it doesn't
adequately explain what "publication" means. And, this, like most aspects of
the Copyright Act, is subject to debate. However, I've found a few sites on
the Web that offer some valuable insight.

For a discussion of the term "publication" as it relates to copyright law,
take a look at http://www.legallanguage.com/lawarticles/Clarida010.html. And
http://www.artistresource.org/copyrite.htm. And last, but not least,
http://www.photosecrets.com/p14.html.

All of us who are considering using others' works in any manner should be
aware that a significant event occurs on January 1, 2003. This is the
transfer into the public domain of many unpublished works from what was
known as "common law" copyright status.

Basically, as I understand the term, "common law" copyright was the domain
of the states and covered all works that were not registered with the
Copyright Office in Washington during the period prior to the enactment of
the 1978 Copyright Act. Basically, "common law" copyright was perpetual, and
this state of affairs was ultimately determined to be inconsistent with the
U.S. Constitution. So, the 1978 Act essentially set a timetable for the
elimination of "common law" copyright.

I know...more than you ever wanted to know about copyright law, but it's
obvious that a couple of individuals involved in these discussions aren't as
knowledgeable as they should be when it comes to copyright law basics. The
information is out there. For those who haven't already done so, I urge you
to take some time to at learn the basics. It may be important to you some
day.

I'm not an attorney, but I do have considerable experience interpreting
Federal and state laws, and that makes it easier for me to dive into these
sorts of issues and do some research on line and at the local law library. I
hope this is helpful.

Tom Keesling
Intelligent Design, Inc.

>Including the mighty Andy Wahol

>> Oh yes they do, Carolyn. When I was taking Art courses at our
>> University, there was even a course in collage making, and many a
>> student made their own "Original" collages out of magazine photographs.
>> It's done all the time, even today. Some artists do only that. Some use
>> their own photos, of course.

For those who are interested, there was a very good (and lengthy) discussion
of this topic on the Yahoo Digital-fineart list a several months ago. It's
worth a look.

Tom Keesling
Intelligent Design, Inc.