Tuesday, April 9, 2024

Fair Use: Yes or No?

Trick photograph of man with two heads (1901) 
Dear Rich: I have a new, unique book soon to be published about judging the quality of art. Every image in the book, from ancient to contemporary art,   is aesthetically critiqued, often with diagrams. There are no variables. It is consistent throughout. From everything I've researched, all the images in the book should come under fair use. What are your thoughts? I believe this is a simple yes or no question. 
Polar interrogatives work well in psychology tests, congressional hearings, and wedding vows, but they're not suitable for analyzing fair use. Congress intended that fair use be determined on a case-by-case basis, making judges the final arbiters. Any yes-or-no prediction of how a judge will rule is just that: a prediction. That said, we think you are likely to prevail in a fair use dispute.
Fair Use Factors. In making a fair use decision, judges analyze four factors, of which the two most important are (1) the purpose and character of use and (4) the effect of the use upon the potential market. As for the first factor, the purpose and character of your use is for criticism, comment, reporting, teaching, scholarship, or research, all of which are permitted under the copyright fair use statute.  As for the fourth factor, we don't believe that the potential market for the artwork will suffer as the republication in your book should not interfere with revenue from fine art prints, catalogs, postcards, and other licensing opportunities. 
But wait, there's more ... There are arguments that can be made against fair use. The third fair use factor - the amount and substantiality of the portion taken -- weighs against you because you are using the complete work. It can also be argued that the fourth factor also works against you because a potential market for licensing fine art for textbooks and art criticism may exist. Finally if you are seeking to exploit your book through a commercial publisher, you may be required to get permission of copyrighted works or to provide indemnification if a copyright owner chases you.

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