WEB FAIR USE-Revisited

Discussion in '35mm Cameras' started by Myron Joshua, Apr 29, 2004.

  1. Myron Joshua

    Myron Joshua Guest

    I followed an interesting thread of yours (Web fair use-from Jan,
    2004.) I did not see how I could reactivate it by posting a follow up,
    so I restart it here.

    While I plan on righting a review article about an oil painting
    (actually comparing 3 different paintings), the issues involved
    concern your work as photographers as well.

    The large international reps for the estates of many artists are
    looking to collect their 20 Euro or Dollar monthly fees for
    "reproducing" artworks even for
    NON COMMERCIAL WEB SITES that want to use THUMBNAIL IMAGES as part of
    a REVIEW ARTICLE. A "cease and desist" letter is enough to scare the
    pants off of any private individual who has dedicated himself to
    establishing such a site.

    If a visual work of art is legally posted on a website that requires
    no login in (unlike the case of Kelly vs Aribba) what rights are
    actually protected. Has the photographer not thrown his work into an
    automatic copy machine for some sort of use by the Public?

    Assuming that there are limitations to that use:
    1. Are thumbnails clearly allowed? (Is there a LEGAL definition of the
    size of a thumbnail.)
    2. Could an image be used as the hyperlink to the webpage that legally
    houses the "original"?
    3. If the visual image is used as a book cover (or poster) that is
    sold at commercial sites, could a picture of the book (or poster?)
    that links to the commercial site be used-where the same images are
    posted under agreement with the owners of the copyright?
    4. I turned to the representative of the estate and rejected their
    offer to pay them 20 euro/month...I let them know my plans to use the
    image under FAIR USE and asked them to respond, if they rejected my
    stance, with a detailed reply. If I receive not reply, would that make
    me free to move ahead?

    Thanks for any input you may give. I believe that Fair use in the
    framework that I want to apply it is good for the artist. But, I guess
    photographers are in a jam as printing out free copies can jeopordize
    income. (Yet, once the image is on any website legally, the whole
    world has the right to download and print out personal copIES and send
    the link to all his friend who can in turn ...ad infinitum.


    Myron Joshua
    Kibbutz Kfar Etzion
    Myron Joshua, Apr 29, 2004
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  2. Myron Joshua

    Alan Browne Guest

    a great "righter" are you?
    Alan Browne, Apr 29, 2004
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  3. [Questions snipped]
    What's fair use under Israeli law, European law, and U.S. law may
    differ significantly. Any precential value of the Kelly v. Arriba
    case is limited to the United States, and arguably only the Ninth
    Circuit, which covers California, Oregon, Washington, Arizona,
    Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern
    Mariana Islands.

    As always, for a specific situations, you're best off checking with an
    attorney or solicitor.
    Michael Benveniste, Apr 29, 2004
  4. Myron Joshua

    Gordon Moat Guest

    While it is tough to prevent usage of images that are posted on the
    internet, I think every artist that places images on the internet accepts
    the reality that there will be some usage without permission. The tough
    part is catching someone, then trying to pursue some legal action. If
    some large company took images without permission, and used them to
    generate revenue, then it only seems proper that the original artist
    should get some form of compensation; though that might only happen if
    legal action were taken. Also, it is tough to pursue legal action across
    many borders.
    I never heard of any. If you can tell what the image is, then it is a
    copy of that image, regardless of size.
    You know, it never hurts to just ask. It is so easy to place an e-mail to
    the creator of that image, and I think most would be happy to have
    another link to their works.
    Your key words there are "under agreement". Contracts for such usage will
    usually already state the usage and display agreements. It should be
    fairly easy to arrange such an agreement, since you would be helping the
    creator earn revenue.
    If you live in a country that is under Berne Convention rules, then part
    of Fair Use allows for you to review works of art. Another common Fair
    Use provision is for education institutions. What exactly are you trying
    to do with the images?
    Well, the whole world does not have the "right" to do so, but it is
    generally accepted that it is going to happen anyway. You can bet that if
    I (or any other photographer) found there images being used for profit,
    there would be some action taken to get a share of that profit. I would
    first politely pursue it in a way to gain a reasonable compensation,
    though if that failed, then I suppose the only other choice would be
    legal action.
    Not sure if Israel is part of the Berne Convention. You may want to check
    into the Copyright Laws in your country. Of course, if you get an image
    from another country, then the laws from that country will apply to it,
    even if that is also not a part of the Berne Convention Agreement.
    Gordon Moat, Apr 29, 2004
  5. SNIP
    According to my information it is.

    Bart van der Wolf, Apr 29, 2004
  6. Myron Joshua

    Myron Joshua Guest

    I am trying to be a "righter" by making the review legally right.
    Thanks for the free editing job;-)
    best, myron
    Myron Joshua, Apr 29, 2004
  7. Myron Joshua

    Alan Browne Guest

    It was too easy. Have a great righting career.
    Alan Browne, Apr 30, 2004
  8. Myron Joshua

    Myron Joshua Guest

    I have seen 150 pixels X 150 pixels as being thumbnail size..but not
    in any legal context. In the Kelly vs Aribba case, it is obvious that
    when looking at the thumbnail the image is identifiable. That is the
    whole purpose of collecting thumbnails for a data base.
    You would be surprised. I have written to the Museum housing the
    original work of art..No response. The Estate of the artists is only
    interested in monthly revenue from use of the image regardless of
    My concern is that the book store or poster shop is not the only
    address. The Artists estate is an independant entity. Could they claim
    that I am not a bookstore selling the book, so I am not allowed to use
    the image of the book, even if I link to the bookstore
    I Live in ISRAEL
    The website is run by AMERICANS on servers in the US
    the Artist was FRENCH and lived in the States before he Died
    The Painting is housed in ENGLAND...

    I am comparing the depiction of a household item in the works of
    Modern Artists.
    This is done for a no profit..no salary...for me or the people who
    post the article on the Web.

    Thanks for your inputs!
    Myron Joshua, Apr 30, 2004
  9. Myron Joshua

    Gordon Moat Guest

    Thanks for updating my information Bart.
    Gordon Moat, May 1, 2004
  10. Myron Joshua

    Gordon Moat Guest

    You are increasing their revenues for that book by providing a link. In the event of legal
    action, one criteria for compensation consideration is lost revenue, so providing a link to
    increase revenue is not a loss of revenue. Disclaimer: I am not an attorney, did not sleep at
    a Holiday Inn Express last night, and I think speculation is not a basis for legal advice.
    Okay, thanks to Bart van der Wolf, it is apparent that all these countries are part of the
    Berne Convention, so all of them have the same "Fair Use" provisions.
    Okay, so it is a revue of art works. Commentary, as in a revue, or for education purposes, is
    allowed under Fair Use, as defined by Berne Convention agreements. It seems obvious that your
    intended posting can be defined as "Fair Use".

    Just to add a bit to this, even if the usage is "Fair Use", there are some other
    considerations. While the copyright holders might not have a claim against your article due to
    "Fair Use", they might have an objection to the way the material is presented. If they think
    the article defames them, puts them in a bad light, or slanders the name of the artist, then
    there are other legal actions (not Copyright actions) they could take against you. While it
    would be a shame to see something like that, be aware that there are some real assholes in the
    world out there, so don't be surprised if you still get a "Cease and Desist" letter from some

    I hope that helps you. Please write your article. I see all sorts of stupid legal actions
    happen in California, and there are some really shitty people involved, but I would hate to
    see those types of people push others around . . . so please write your review. Best of luck.
    Gordon Moat, May 1, 2004
  11. SNIP
    Don't take my word for it (IANAL):
    http://www.indexstock.com/pages/berne.htm (contracting parties)
    http://www.wipo.int/treaties/en/ip/berne/index.html (Berne Convention for
    the Protection of Literary and Artistic Works)
    http://www.wipo.int/treaties/en/ip/index.html (Intellectual Property
    Protection Treaties)

    Bart van der Wolf, May 1, 2004
  12. Bart van der Wolf, May 1, 2004
  13. Myron Joshua

    Myron Joshua Guest

    Thanks to all for the input and links.
    It sounds like my article and the type of images that I want to use
    all qualify under the concept of FAIR USE.
    It is sad that respectable organizations like ADAGP and ARS do not
    help clarify these issues, but prefer to hold all the cards close to
    their chest.
    Myron Joshua, May 2, 2004
  14. Myron Joshua

    Gordon Moat Guest

    Gordon Moat, May 2, 2004
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