Monday, August 19, 2013

Wants to Use Sled Dog Photo

Dear Rich: Because the Sled Dog Action Coalition and its website are educational, noncommercial entities, under the doctrine of "fair use," I think I should be able to put the Anchorage Daily News photo of Dick Mackey on my website without violating the paper's copyright. At this time, the paper isn't selling copies of this photo on its website. In your opinion, may I publish the photo of Dick Mackey on the Sled Dog Action Coalition website without violating copyright laws? Should I give the Anchorage Daily News credit for the photo? In this case, we're hesitant to make our usual statement --  "Yes, it's infringement but it's not likely that the copyright owner will pursue the matter." As we mentioned in a previous entry, copyright owners sue over uses like yours if (1) it's a business to business dispute, or (2) it's easy to sue, or (3) it's a matter of principle -- for example, copyright lawsuits involving Scientology, George Harrison, and Ben Stein were spurred on by non-financial considerations such as revenge, harassment or personal offense over how the copyrighted material was used. Because your site likely is the source of some controversy, it's possible that angry Alaskans may figure into the lawsuit equation -- that is, if the copyright owner of the photograph is pro-Iditarod, you may find yourself hassled.
What about fair use? Fair use may excuse your reproduction of the photo (you can find a list of photo fair use cases here). Perhaps you can argue that your use is transformative as you are using it to make a pro-dog, anti-Iditarod statement. And it's possible that the nonprofit aspect of your use will work in your favor. But as we regularly point out, fair use can only be decided by a court and most people can't afford to pay the legal fees for that type of resolution. As for attribution, see our previous post.