235px-Fair_use_logo.svgWhether or not you need to get permission to reproduce someone else’s work, either text or image, depends at bottom on whether you’re going to make commercial use of it — though of course if your reproducing a picture and offering it free on-line means that the originator can no longer sell copies ‘cos all the demand is being satisfied by your free offering, this would self-evidently not be fair. In judging fair use the court will take account of the damage to the copyright owner, and will assess the substantiality of an extract. Would quoting two lines from The Waste Land in your autobiography be fair use? The man on the Clapham omnibus might think yes, but the Eliot estate would probably not agree. T. S. Eliot may be an extreme case, but substantiality is obviously difficult to define. One line from a sonnet is clearly more substantial than one sentence from The Game of Thrones, but is it really substantial enough to affect the sale of the original? It might be — or, more accurately, you might find a judge who would agree that it was. Quotation for the purposes of “criticism and review” is stated by the law to be fair use, though there’s much uncertainty around this. I guess people are worried about exactly what criticism and review mean, though they seem pretty unambiguous terms to me. The fact that the law places the burden of proof on the defendant is no doubt the caution-driver. Staunch liberal that I am I would always want to say “publish and be damned” in the case of monographs which would be lucky to sell 750 copies, but most authors of academic books now tend (and are usually advised by their editor) to clear permissions for all quotations and certainly for all images. If you intend to sell your work, you would be well advised to follow the advice of The Visual Commons Guy, and request permission for all images, as well as for all quotations of any substantiality (you can be the judge of that).

I’ve always tended to regard my use of images in this blog as fair use. I may be right; I may be wrong. Fair use is not a concept that is fully defined in US copyright law: it’s one of those things which ends up being homed in on by a bunch of judicial decisions. I hope nobody sues me to test the validity of my assumption that a non-money-making blog directed at a small audience, giving full credit, and not distorting the message intended by the image’s originator, can fairly reuse an image which has been made available for copying on that most public of spaces, the Internet. In other words I rest my case on the blue column at the right of this infographic from The Visual Commons Guy, brought to our attention by GalleyCat. You can see that the calculation for a blog like The Visual Commons Guy might need to be a little different than mine — he has ads — but as he says, if it’s been made available publicly, it’s not crazy to believe that the creator’s priority is that people see the picture, rather than that money be made from it. Of course the fact that he’s selling copies of the infographic on his site should perhaps be giving me pause! Still, that GalleyCat precedes me in reproducing the chart gives me hope. [Plus, if you visit “Shop” on his site, you’ll find he actually says it’s OK.]

The Fair Use logo at the head of this piece comes from the Wikipedia article about Fair Use. I’ve never seen this symbol before and cannot imagine a circumstance in which it might be used. The article doesn’t appear to refer to the logo — and I suspect the logo may be an instance of parody (appropriately also explicitly mentioned by the US copyright law as a fair-use defense against copyright infringement). The two initials enclosed in the circle may suggest an attitude to the restrictions on fair use which seem more and more to encroach on our rights as individuals.

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