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Author Topic: Is my fair use "defence" any good?  (Read 719 times)


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Is my fair use "defence" any good?
« on: 07-20-17 at 11:47 am »

Dear Ladies & Gentlemen,

1st of all, please excuse my english. I'd appreciatte your opinion on the following matter:

I'm planning a non-profit educational book, which I will give to students. The subject will be audio-visual technology. I have these concerns:

Let's say that I found a pic of a famous actor on a set, there're cameramen and sound engineers around. Can I obscure his face and draw a circle around the devices that are relevant to the book? The same question about famous musicians in a studio setting or at a concert (e.g. focusing on an amp).

The face of the celebrity is irrelevant to me, I do not intend to gain money or fame from his photo. I need to show the readers the equipment that the artist used (as in "this movie or album was recorded in a such-and-such way"). Or let's say there's a famous DJ or a film editor on the photo, his face is not important, but the action he is performing ('scratching' a record, splicing a film).

Also, another problem. In the US you have the fair use doctrine, but other countries do not have it. What should be done in such cases?

I have some photos from european magazines or websites, but the copyright holder doesn't give me a permition for a free use. In this case, the photos do not contain celebrities, but devices. They're discontinued, from old manuals. These photos today have zero business value, but they're important to me for historical and educational reasons.

When I requested a permition, they replied: "No, you can't use them, we recommend you to make pics of our equipment in the field". I can try that, but you can't find everything you need around you. We're talking about devices used decades ago. Also, we are talking about old methods of working (e.g. tape splicing). I can't recreate such photos.

Now, this is my rationale, it includes some legal aspects, but also some moral and ethical ones:

1. The project will be educational and non-profit. Not only that I will not gain something from it, but I will lose. I will pay everything from my pocket. My monthly salary is 300 USD btw.

2. My country is a small and poor market (2 milion people), the interest for such a book is very low (only in narrow circles), so the copyright holder will not loose a cent

3. My native language is not widespread like english, spanish, french, german etc. It's a language spoken only in my country. It will be impossible to sell such a book abroad, even if I want to.

4. First I thought that the book should be sold for a low price just to cover the expenses, but I decided that it will be given for free. I will add "NOT FOR SALE" on the cover in both my language and english.

5. I will add fair use declaration somewhere on the first pages both in my language and english.

6. It will be a printed book and I will intentionally not publish it online to avoid piracy

7. There are no free alternatives to the photos that I need.

8. I'll try to ask for permition where possible, but for US sources, I will go with the fair use, which allows me to use materials without requesting permition, as long as I obey the rules.

9. I will add elements to the photos to focus on secondary objects, so I'm transforming the image and I give it a new meaning and purpose. Unlike the celebrity, who is ussually in the center of the photo, those secondary objects are on the side or in the background. They're not essential, they're not the core of the photo. They are often hardly noticeable for an untrained eye. Most celebrity photos do not include description of the equipment around them, which prooves that the photographer has absolutely no clue what these devices are. I often have to identify the devices myself.

10. The photos will be in the interior of the book, not on the cover. I will try to resize them to be small, however, in some cases, the object of interest is too small (somewhere in the background) and I will be forced to show a larger version of the photo.

11. Business has no mercy, everyone must respect and pay for someone else's work, but there's a point where public interest must prevail over someone's greed.

12. Films and songs are not just entertainment, some of them have a high cultural and historical value, they belong to the world's heritage and the public has a right to learn more about them.

13. If some photographer made photos of (let's say) The Beatles, he or she should be commended and payed for that, but there must be some limit. If he or she photographed The Beatles, it doesn't mean that he or she was one of The Beatles, he or she didn't write their songs, so he or she should not be allowed to "leech" on the their hard work forever.

I apologize if I sound harsh, but this copyright thing sucks all my energy and I can't concentrate on my work. This is almost like a "censorship".

Thank you

Robert T Nicholson

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Re: Is my fair use "defence" any good?
« Reply #1 on: 07-23-17 at 08:43 pm »

Some of your points have merit, and I believe your use would qualify as fair use under US law.  However, leave out the personal opinion!

But the real question you need to look into is how this would be treated in the country where you intend to publish the work.  I would strongly advise you to consult with a LOCAL Intellectual Property attorney.

This post is provided for information purposes only, and does not constitute legal advice.

Robert Nicholson Consulting | Copyright Safeguard | ED Treatment Center


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