Friday, February 28, 2014

Can I Display French Poetry At My Bar?

from the Paris Sketch Book by
William Makepeace Thackeray
Dear Rich: I own a bar in New York City. The bar is named after a famous French poet from the late 1800s. He died in 1896. He drew sketches as well as writing poems. I purchased a book from a manuscript museum based in Paris about the Poet. The book has images of the poet's handwritten manuscripts and drawings. I want to tear out some of these pages, cut out the images and make a collage on my bar top of the poets works. The collage will also be made of torn out pages from old poetry books that I have manipulated using paint to make the pages look old. The entire bar top will then be covered in a glass waterproof coating. Can I use pages from this book? All the images are of works produced by the poet before 1900. Yet this book was just produced last year. Pas de problème for your project. The Dear Rich Staff says, "Tous les bons!"
First sale doctrine. You're free to cut up pages of a book and display them in your bar under a principle known as the first sale doctrine -- a copyright principle that enables the owner of an authorized copy of a work to sell or dispose of it. There are some limitations for fine art works and even for printed books (as we discussed in a previous entry). But your proposed use steers safely clear of problems. In addition, if the works were published in the U.S. before 1923, they are safely in the public domain and free for you to use for any purpose.

Thursday, February 27, 2014

Wants to Use Steve Jobs Speech


Dear Rich: We would like to use the transcript for the Steve Jobs commencement speech at Stanford University, June 2005 in a lesson at school (6th grade). Can we photocopy the transcript and distribute it to students (to write and make notes on) without getting permission? If we do need permission, who do we ask? Steve Jobs' estate, Stanford? We're unclear whether the Estate of Steve Jobs or Stanford University owns the rights. (The video (above) and text reproduction both provide copyright attribution to Stanford so perhaps the rights were assigned or licensed to the university.) It's likely that your reproduction qualifies as a fair use but in any case, whoever holds copyright probably won't chase after a sixth grade teacher spreading Jobs' message of self examination and spiritual innovation.

Wednesday, February 26, 2014

Why Am I Being Sued After eBay Cancellation?

Dear Rich: I bought an item (500 feet of cable) on eBay, paid and received the goods. The goods were defective and after my complaining the seller refunded the purchase price and he further asked for a mutual eBay cancellation. I agreed and the transaction was canceled. I immediately disposed of the defective merchandise as it was never requested that it be returned. It has now been almost two months and I never have received communication of any kind from the seller. Now out of the blue the guy is suing me in my state's Superior Court under contract law violation and demanding even more than the original amount. Never mind that he illegally charged sales tax (we are both in NJ) or that he perjured himself on his statement to file the complaint. How can this be and what do I do? We usually don't deviate from our bailiwick of intellectual property law but because we once wrote a book about eBay (outdated, but still for sale at eBay), we'll make an exception.
How can this be? Unless the parties agreed that the eBay resolution -- the mutual cancellation -- was the final decision on the matter and was binding and precluded any further legal disputes, either party would be free to file in a "court of competent jurisdiction." It's unlikely that the cancellation prohibits filing a court case -- eBay's Resolution Center promotes mediation, not binding arbitration -- but just in case, review the small print from your mutual cancellation arrangement. If it binds and is non appealable, you can introduce that in court.
Why am I in court? Most eBay transactions occur across state lines. Civil suits are rare because the disgruntled party would have to sue in the other party's state court (in order to acquire personal jurisdiction). For example, if you lived in Ohio and the seller lived in New Jersey, the seller would likely have to file suit in Ohio. That's not an issue in your situation, so regardless of the unfairness, you must defend yourself or risk a default judgment (which could possibly be the seller's strategy).
The contract claims. Based on your letter, it sounds like you have a reasonable defense: the merchandise was defective (and the seller acknowledged that by returning your money). The case may hinge on whether the seller sought return of the merchandise and communicated that to you.  If it's a contract claim, the amount sought by the seller should reflect the compensatory damages -- the amount that the seller expected to receive from the sale. Any demand in excess of this amount would have to be justified as being foreseeable by both parties. In other words, it's going to come down to a matter of evidence so you must organize to demonstrate each point that you make in your letter.
PS Dept. You state that the seller "illegally charged" you sales tax and you're both from New Jersey.  We're not sure what you mean. Sales tax normally would be charged in such a situation.
BTW Dept. If your dispute is with eBay, you'll likely be barred from taking them to court by the eBay user agreement.

Tuesday, February 25, 2014

Wants to Use Twin Peaks Quote

Dear Rich: We are a small publishing company and are about to publish a novel in which the author includes one brief quote from David Lynch's "Twin Peaks". The entirety of the quote is: “Have you ever experienced absolute loss? It’s deep down inside. Every cell screams. You can hear nothing else.” If we cite the quote (either in text or in the copyright page) will this be sufficient, or do we have to request permission for its use? We are having a difficult time establishing who owns the rights to the show. Alas, in the years since Laura Palmer has disappeared, the Twin Peaks name has been usurped by a depressing chain of breastaurants, making Internet research on this subject annoying and potentially troublesome (based on the keylogging trail we're leaving behind at work).
Fair use? Your proposed use seems like a fair use (for which permission is not required). The amount taken is small and it is being used a for a purpose not intended by the copyright owners (a transformative use).
Just in case dept. If you're not comfortable claiming fair use and you'd rather get permission, we think the owner of rights is Twin Peaks Productions, Inc. (formerly Lynch/Frost Productions). According to California corporations records, the company can be contacted either care of Hansen, Jacobson, Teller and Hoberman, 450 N. Roxbury Drive, 8th Flr., Beverly Hills, CA, 90210, or via Fred Altman, 9255 Sunset Blvd. #901, Los Angeles, CA, 90069. You can also review the history of copyright transfers for Twin Peaks by searching Copyright Office records -- search for "Twin Peaks" here.
BTW Dept. Twin Peaks Productions, Inc. chased an infringer in a 1993 fair use case.

Monday, February 24, 2014

Can School Grant Minor's Release In Loco Parentis?

Dear Rich: We are a not-for-profit producer of educational programming for public broadcasting. When minors participate in public radio programs, we obtain releases from their parents. If a minor is recorded in a school under the direct supervision of the school's principal, can the principal, acting in loco parentis, provide a valid release if the parent declines to respond to our request for one? We don't think that a school can grant a release by a minor for a public broadcast performance. Equally important, we're not sure why the school would want to be in the position of granting the release.
What is a release? A release, in its purest form, is an agreement in which someone releases the other party from liability. For example, a ski lodge might seek a release from liability from the students on a school ski trip. When students perform for the radio, the public radio station may seek a release for future claims of invasion of privacy, right of publicity, or defamation. In other words, after granting the release, the minor can't come back and sue over the subsequent use of the material regardless of the context. Releases sometimes include an assignment of rights in which case the radio performer gives up any copyright in their words or performance. Some releases are broad (for all future uses) and some are narrow (that is, geared to a specific activity, for example, a release for a particular radio show).
In loco parentis. The doctrine of in loco parentis, as applied in primary and high schools, enables the school to stand in for the parents in certain matters --  typically disciplinary enforcement of school rules. Usually the doctrine is triggered when school officials isolate, interview, and penalize a "trouble-maker." Reviewing the doctrine, the Supreme Court has said, "First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings."
A release is a contract. The school's ability to serve as a parental surrogate appears to be limited to enforcement of school rules and standards. We see no evidence that the in loco parentis doctrine permits the school to enter into legal agreements on behalf of a minor or to guarantee the performance of a contract, particularly a contract in which the student gives up the right to sue over tort claims. In addition, we can't imagine the doctrine applying when assigning a copyright (that is, giving up an intellectual property right). Previously we've waded into the issue of who can sign a release or agreement on behalf of a minor. The rules are murky involving voidable agreements, parental guarantees, and judicial ratification. Even if the school had the ability to act in loco parentis in this manner, we're not sure it's in the school's best interest to do so (and we think the school's general counsel might agree).

Thursday, February 20, 2014

Can I Copy Geometry Terms and Postulates?

Dear Rich: I would like to produce and sell a reference sheet for definitions, postulates and theorems used in high school geometry. I am wondering if these are copyrighted. I was looking through several textbooks, math encyclopedias and even websites, and I found that some of these terms were identical and others had slight variations. It almost seems as though there would be a standard for these terms that should be used in teaching all math so that students are learning the same definitions, etc. no matter where they are educated. A postulate (or axiom) is a statement that assumes the existence, fact, or truth of something, for example -- all right angles are equal to one another. A theorem is a result that has been proved to be true (using facts that were already known) for example -- the Pythagorean Theorem. Most likely you're free to borrow postulates and theorems without legal consequence. Because postulates and theorems are ideas (or part of a geometry system or method) they are not likely to be protected. As the Copyright Office has stated, protection is not granted for "ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices (as distinguished from a description, explanation, or illustration)."
Definitions. A definition is a statement of the meanings of words or phrases. As a general rule, if there is a limited number of ways to express a definition, copyright law tolerates copying. Short definitions may fall into this category. If not, a few changes in wording should suffice. However, be careful when you take too many word-for-word explanations from one source. The source may complain that you are infringing original expression (that is, they may argue that there are many ways to  define the term) or you may be accused of "compilation" infringement.

Wednesday, February 19, 2014

Do I Have to Pay to Use Public Domain Footage?

video
Dear Rich: I am working on a potential web series that would like to use material from old movie serials that are in the public domain. The first major issue I'm running into is how to properly source the film. I have found some public domain libraries that charge varying fees depending on the resolution of the movie. The issue I'm confused about is if this movie is in the public domain, what is the advantage of paying the higher fee to get it using the library? Isn't any copy of this film, even on a dvd that's for sale, still in the public domain? In most cases, the production company is doing little more than cleaning up the print for resale, and then copyrighting that process.  If video content is in the public domain, a higher resolution or cleaned-up version is unlikely to merit separate copyright protection (although protection may be granted for a colorized version). (You can review the case law in a previous entry.)
Paying for resolution, not permission. When you pay for high resolution public domain video, you're paying for access to a better quality copy, not copyright permission. Museums employ a similar strategy when they prohibit photos of public domain paintings but license high resolutions images. An additional problem with paying for these processed PD works is that sometimes you must enter into a license agreement to use them, further limiting your right to the material. (We discussed such licenses in this entry.) Generally, you're better off avoiding such licenses.
P.S. The public domain video we "grabbed" for this entry shows the mighty Perceptron - a device with an apparent gender-blending blindspot.

Tuesday, February 18, 2014

Can Joint Owner Assign All Patent Rights?

Dear Rich: In your first edition of your book, License Your Invention, you state in Chapter 4, "When there are joint owners, all of the owners must consent to an assignment of all rights to the invention. That is, none of the owners can give up all rights to the invention without obtaining agreement from the other owners."Please tell me where I can get background information about this statement. I have not been able to find this in Title 35 of the United States Code. Joint owners of patents can do some pretty crazy stuff -- they can license the patent without the consent of the other joint owners and without paying them either. But an assignment, unlike a license, is a permanent transfer of ownership. It's an outright sale of the patent, and for that reason, a joint owner can only assign his or her interest. As stated in 37 C.F.R. 3.1 (Definitions: Assignment)
Each individual inventor may only assign the interest he or she holds; thus, assignment by one joint inventor renders the assignee a partial assignee. A partial assignee likewise may only assign the interest it holds; thus, assignment by a partial assignee renders a subsequent assignee a partial assignee. All parties having any portion of the ownership in the patent property must act together as a composite entity in patent matters before the Office.
If it were any other way, any joint owner could easily "steal" the rights of his co-owners depriving them of any possibility of revenue. There is even case law prohibiting joint owners from granting exclusive licenses (rights that exclude other inventors from licensing) without the consent of all owners. Of course, joint owners can contradict these rules by a written agreement.
PS Dept. Your edition of our book may not be current (it's about 20 years old). The current version is entitled Profit From Your Idea: How to Make Smart Licensing Deals.

Friday, February 14, 2014

Can I Use Forensic Analysis of Crucifixion

Dear Rich: I am using a portion of a publicized lecture (regarding a forensic analysis of the crucifixion) of a recently deceased author. It will be published in my book for teaching purposes. I took an excerpt from the lecture and added definitions to elaborate on the meaning of certain words for greater understanding. I put the definitions in parentheses to indicate it was not original information. I am citing the website and all the information I can find about author and I also put the copyright info from 2006. I tried to get permission from the author while alive and got no response to email. I tried to call and the public number and apparently it is not the right one. I have not been able to locate the company who's name is on the copyright. Am I violating fair use by adding definitions of words he used? I'm sending you the information and what I have done with it. We found your materials fascinating to read but we cannot officially bless your version as that might be crossing the line between providing legal information and legal advice. We can say that you are likely to have a strong fair use defense (and the defense may even be stronger the less material you borrow). Your use is not necessarily transformative --  you're using it for the same purpose as the material was written --  but the other fair use factors likely go in your favor. (It's okay to include definitions, though they don't really make it transformative, either.)  As always we must remind you that fair use is a defense raised in court and can only be validated by a judge. So, "getting to yes" can be an expensive trip. In any event, keep a record of your attempt to seek permission as that demonstrates your desire to do the right thing -- a mitigating factor in infringement lawsuits.

Thursday, February 13, 2014

Can I Use Image If There is No Copyright?

Dear Rich: My question is a question about copyright as well as a question regarding your blog. I'd like to use an image from your blog (from this entry) but as you didn't specify who was the author, I don't know if it is copyright-free. So my question is: do I have the right to use an image if there seems to be no copyright? As regular readers of our blog know, any picture first published after February, 1989, is protected under copyright regardless of whether copyright notice or attribution is included. As a general rule you should presume a photo is protected unless the photo indicates otherwise.
So who owns the image? We created this image which is a derivative work. We're heavy users of iStock and we're pretty sure the photo of the books was licensed from that site. We added the mesh background and balloon captions (which is probably a violation of the iStock license agreement - please let sleeping dogs ... etc.). If we'd created the whole thing, we'd gladly permit you to use the image with attribution but since we don't own rights to the underlying photo, we can't offer that. However feel free to apply our captions over your own bookshelf.

Wednesday, February 12, 2014

Why Can't I Play Cover Songs at Farmer's Market?

Dear Rich: I sing and play guitar (for about 50 years now). A few years ago I started playing and singing at a local farmer's market. About a month ago the manager of the market said I couldn't play cover songs anymore. ASCAP had contacted them and threatened to sue. I just assumed this wouldn't apply to me since I am not paid to play and the market does not advertise live music. I just play for tips ($10 - $20 for four hours!) and this is a public place. So, if I play out on the street corner in downtown Tucson is ASCAP going to threaten to sue me? Also, is there some kind of fee I could pay just for the privilege of playing copyrighted songs? [Disclaimer: Members of the Dear Rich Staff belong to BMI, ASCAP's rival.]
For those readers who are unaware, ASCAP is a performing rights organization/society (known as a PRO or PRS) that collects money from those who play songs in public ("public performance"). It then, in turn, pays the owners of those songs, typically a songwriter or song publisher. PROs collect money from malls, radio stations, TV stations, restaurants, and any other institutions or merchants who broadcast or perform songs from the ASCAP repertoire. Lately the PROs have begun to pursue an overlooked venue -- farmer's markets. Here's what a typical ASCAP letter might look like. The Farmer's Market Coalition is amenable to working out an arrangement but has balked at the stiff fees demanded by the PROs. The organization has retained legal counsel to look into the issue.
Will they pursue me? We're sorry to learn that your busking career has been so drastically altered, especially after having enjoyed the gig for several years. If you decide to return to the streets, we don't think you'll be hassled by a PRS. Performing right societies don't pursue individual musicians, they pursue and license the establishments where the music is performed. You can't pay an "individual" fee for performing cover songs because ASCAP only collects from the businesses, establishments or sponsoring organizations.
Isn't it unfair? That depends on who you ask. Your arguments -- you're not being paid, the market doesn't advertise live music, it's a public place -- may work for espousing free speech, but they don't line up with copyright law or commercial reality. The right to "perform" a song is controlled by the copyright owner. In any case, you're free to play music in a commercial setting as long as it's not ASCAP music. So your original or public domain compositions won't get anyone in trouble. Whether you get paid or not is of no consequence because the market benefits in the same way Urban Outfitters and Whole Foods benefits by presenting a more "pleasing" shopping event. (Note, slow music makes people spend more!) If it weren't so, the music would get turned off. (PS. The Dear Rich Staff is old enough to remember when you didn't have to listen to music when you shopped for English muffins!)

Monday, February 10, 2014

Can I Make Poster From House on Haunted Hill Movie?

Dear Rich: I run a poster production company that specializes in limited edition, studio licensed film and entertainment posters. I would like to know that if a film is public domain, does that mean you can create merchandising products for the particular movie? One title in particular is "House on Haunted Hill"(1959). We are fans of the film and saw that they failed to renew the copyright. We have contacted the the one who handles the estate for the lead actor in the movie, which is Vincent Price, and we have obtained permission to use his likeness rights in the poster for a fee. Besides his likeness, we also want to have a credit block on the bottom of the poster (which is at the bottom of movie posters that contain actors names, writers, directors, producers, etc. -- also known as a billing block). So does this mean we can go ahead and make the poster, or are their any other things we may have to do first? No more permissions are necessary -- you're good to go. By obtaining rights from Vincent Price's estate, you've avoided any potential right of publicity claims. As for the attribution in the billing block, that will not trigger rights of publicity or trademark claims. In fact, the Supreme Court has ruled that attribution is not required with public domain films. We can't say for sure whether other merchandising efforts require permission, but, assuming your permission from Price's estate covers the use (and assuming your products don't create confusion with the movie's remake), they should be fine.
P.S. One advantage of exploiting the House on Haunted Hill is that it's based on an original screenplay, not a book, and therefore you avoid the hassles that plague some other public domain films (scroll to "Subsequent History").

Thursday, February 6, 2014

Is It Legal to Rent eBooks?

Gutenberg gets his first Kindle
Dear Rich: Do the the same copyright laws apply to electronic books as physical ebooks, in case of libraries? Can libraries buy an ebook from an independent retailer and lend them to their patrons, in the same way as they lend physical books? Also, if I have a physical book and I convert it to an ebook by scanning and destroying the original physical book, do I violate any copyright laws? As to your latter question, we think you're asking "Can I scan a physical book into electronic format if I later destroy the physical book?" No, copyright law prohibits the making of copies of books, whether it's a photocopy or PDF. So home-made eBooks are a no-no. And destroying the original print book -- though you're entitled to do so under the first sale doctrine -- doesn't enable the right to copy, either. However, there are academic exceptions for making archival copies of some books.
Can I set up an eBook rental business. There are two hurdles to setting up an eBook rental business. The first is that most eBooks are licensed, not sold. When you buy a book via Kindle or through the iBooks store, for example, you have pre-agreed to the licensing rules which limit your use to the selected and approved devices. Similarly, many publishers who sell directly require end-user licenses (even those spreading the word of God). So, regardless of copyright law, these agreements prohibit further eBook distribution. Second, if the rental of eBooks is uncontrolled -- there are no mechanisms in place to limit copying -- it may be perceived as a means of encouraging infringement, especially if your site earns revenue from third-party advertising subscriptions, or some other form of revenue. In that case, you may have to fend off DMCA notices and claims of contributory or vicarious copyright infringement.
How do libraries do it? Libraries enter into agreements with eBook distributors such as Overdrive and EBSCO who, in turn, have entered into agreements with publishers. These agreements establish the end user's rights, digital rights management systems, and the limitations under which the library must operate.


Wednesday, February 5, 2014

Will I Get Sued For Not Getting Movie Permit?

Dear Rich: Last year I shot a feature length film guerilla style in Washington D.C. I had very low budget for the film so I couldn’t afford the insurance or location permit fee. I went head and shot all my exterior locations with out any city permit including one in a park. We were shooting very low key and we didn’t have any problem while filming no police stopped us or asked for any permit at all. My question is, after the film is finished released can the city come after me for not acquiring proper permits for the exterior locations? I might add some of the locations are very recognizable. Also I have one actor wear a baseball hat with the national logo in it and another actor is also wearing a t-shirt that has a bold letters that could be copyrighted words. Am I going to have a copyright infringement issue with the owners of the logo and the t-shirt? It's possible, though unlikely that the District of Columbia will sue you for failing to obtain a D.C. film permit. Like all jurisdictions, the District of Columbia has the right to penalize those who fail to obtain required permits -- for example, it can go after those who violate its rules regarding building permits, parade permits, etc. But practically, most jurisdictions don't chase after filmmakers post-production ... at least we can't find any evidence.
Film permit laws. The primary purposes of film permit laws are to avoid liability (by guaranteeing insurance coverage),  and to secure the location (police, parking, closures and other coverage) Permits also often serve as a location release for filmmakers  and because some distributors and insurers audit releases and rights, it's possible that your ability to distribute your film may be limited by your lack of a permit.
Hats and shirts. You're unlikely to have a copyright issue over the t-shirt (copyright doesn't protect short phrases). As for the hat, we're not sure what you mean by "national logo." If you're referring to a flag or some other U.S. insignia, you're not going to run into a problem. If you're referring to a federally registered trademark, you may need permission if you are showing a non-documentary film in any sort of national distribution system (festivals, commercial distribution, etc.). Here's a post we wrote about trademarks and movies and here's a previous post we wrote about permits and photography. Also, you can check out our book on permission for more information on using trademarks.

Tuesday, February 4, 2014

Do Animals Have a Right of Publicity?

Dear Rich: I am a pet photographer and recently I gave a client my release that states I own all rights to the images of the pets and that I can reproduce them for my own purposes. The client was concerned and told me that I couldn't use her dog's photos for any purposes except my portfolio and she specifically said that she didn't want her dog to be in an any ads. The client is a lawyer. I've never sold any photos for ads but wanted to know what my rights were. Under the existing law (and unless you signed or agreed to anything to the contrary), the owner would not be able to stop you from using the dog's image in an advertisement. That's because (1) as the photographer you own the copyright on the image, and (2) animals, unlike humans, don't have any right of publicity (also known as "likeness rights.") This is despite the proclamation by the IP guru, Melville Nimmer, that owners of animals should have such rights (scroll to page 73).
What about Lassie? It's possible that famous animals may have a trademark claim to their name and/or likeness (and certainly their owners have tried for various property rights). But, so far, no court has extended right of publicity claims to animals.

Monday, February 3, 2014

Can I Use Betty White Picture in Documentary?

Dear Rich: My daughter is doing her first short student film (5 minutes). It's about an elderly woman who lost her husband and is continuing her life by auditioning, etc. In the film she is using a poster of Betty White, shown very briefly as inspiration for the main character. She bought the poster on Amazon. The poster does not cite any publisher or maker. Her instructors in her film program expressed concern about using the poster without permission from someone. They suggested she needs a lawyer to draft up a fair use statement. This is a student film. It is not going to be sold, nor submitted to film festivals, etc. It will only be available on an internal university platform that is passcode protected where only students can view. The instructors are threatening to remove the footage from her class film out of fear of being sued. What is the best course of action? Does permission need to be secured in this case? Who should give permission? Betty White? The producer of the poster? Both? Does having a fair use statement drawn up by a lawyer accomplish anything? Do you have an example of such a statement? Or should she just give up and delete the footage because it is too complicated at this point to figure out? We'd hate to see footage deleted, especially when it is part of a preemptive CYA academic scheme. In our humble opinion it really seems like overkill to require such an opinion for this scenario and under these conditions ... but hey, it's been a long time since we went to school and we assume that litigation crazed copyright owners have altered the academic climate. Maybe we can find a way to save Betty White!
Fair use opinions. Yes, fair use statements are often drafted by lawyers for movie companies who need them for the benefit of insurance companies. In fact, insurance companies often pre-select attorneys for these legal opinions based on their expertise and experience. Such statements provide an opinion supported by current case law.
Permission from Betty White? Betty White has the right to halt commercial uses of her image under right of publicity rules -- for example, in ads or to imply endorsement of a website. But, unless she owns the copyright to the photo, no permission from Betty White is required to use her poster for a documentary film.
Statement of Best Practices.  We think your situation is an ideal one to apply the Documentary Filmmakers' Statement of Best Practices in Fair Use (prepared by The Center for Social Media). the Statement "makes clear what documentary filmmakers currently regard as reasonable application of the copyright fair use doctrine ..." and has been accepted by numerous broadcasters as well as four insurance companies, thus simplifying the clearance practice and avoiding expensive opinion letters. You should review that document and attempt to fit your use into one of the four classes. For example -- if the subject of the film (not the documentary maker) acquired and used the poster, your daughter may make a convincing argument using the third class of situations -- "Capturing Copyrighted Content in the Process of Filming Something Else." You may also benefit by reading up on the "transformative" aspect of fair use as well as looking at some summaries of fair use cases.
If fair use does not apply ... If fair use does not excuse the use, you would need permission from the person who owns the rights to the image on the poster, typically the photographer.