Forwarded with permission:: > ----- Original Message ----- > From: Tyler Ochoa <[email protected]> > To: Multiple recipients of list <[email protected]> > Sent: Thursday, February 07, 2002 7:41 PM > Subject: Re: Image use > > > >...Is it possible in countries with a "fair use" > > >system to illustrate scholarly works with copyrighted pictures without > > >seeking permission? > > > > > > > As is always the case with fair use, the answer under U.S. law is: "it > > depends." Scholarship is one of the illustrative purposes listed in > > Section 107, but you still have to evaluate the four factors: purpose > > and character of the use, nature of the copyrighted work, amount and > > substantiality of the portion copied, and effect on the potential market > > for the work. So, it depends a great deal on things like: are we > > talking about original photographs, or photographs that simply reproduce > > a copyrighted two-dimensional work of art (i.e., does the photographer > > have a legal interest in the reproduction, or only the original artist); > > are the images are being reproduced in low-resolution black and white, > > or high-resolution color; and is the scholarly work being published in a > > non-profit peer review journal with limited circulation, or is it being > > published in a full-color glossly museum catalog that will be sold in > > large quantities to the public? > > > > The advantage of fair use is its great flexibility. The disadvantage of > > fair use is its unpredictability; you can rarely determine with > > certainty in advance whether a particular use will be deemed fair. > >This leads to some negotiation and licensing, and to a very large chilling > > effect. > > > > Tyler T. Ochoa > > Associate Professor and Co-Director > > Center for Intellectual Property Law > > Whittier Law School > > > > Visiting Associate Professor > > University of California > > Hastings College of the Law
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