Lesson 6: Fair Use
What Does It Really Mean?
by Melissa Olivero and Terri Hopkin
Based on Information From Title 17
http://www.copyright.gov/title17/

Question         

If something is copyrighted to you, it means that no-one, by law, is allowed to use it without permission EVER, right?

Wrong!

There is a little loophole in the law which is generally referred to as "Fair Use". In the PSP, tagging and letter creating community we see this claim all the time, but what does it really mean?  This term is very specific and very detailed so let us start by looking at some examples:-

·        If you are a teacher, or home-school mom, and you use a copy of modern art to teach your students about the image; about the artist’s style and techniques; his composition and eye for detail; and about modern art in general, then you may use the painting without permission – providing you always give the artist credit and include his copyright information. This is Fair Use.

·        If you are a late-night talk show host and you want to make fun of Bill Gates' Windows Program, that is classed as being in parody, you can make fun of it without permission. - but you must always give full credit and include any copyright or trademark information. This is Fair Use.

·        If you are a movie reviewer working for a newspaper, you may quote a film and use stills in your critique without permission - but you must always give full credit and include any copyright or trademark information. This is Fair Use.

Before we apply the rules of Fair Use to our hobby, there is one other major fact to consider, Clause 1074 of Title 17 very clearly states that any claim to Fair Use “must not have any effect of the use upon the potential market for, or value of, the copyrighted work”.

Translated that means you cannot use the art if in doing so you affect the commercial rights of the artist.  That is all Fair Use covers.

Now let us look at Fair Use and why it does not apply to our hobby.

Have a look in your style box or your tube folder, look at the images or letters in there now think, how many of them that claim “Fair Use” also state Artist Unknown, or Graphic from Group Share. These two statements alone rule out Fair Use because no credit is given to the original artist.

But let us look a bit further, click on a link to your own favorite artist; is there a shopping cart on his site? Does the artist have his images up for sale? If so, to right click and save is depriving the artist of his income. He has his shop open for business, not open for creators to help themselves. By right clicking without permission, you are affecting the commercial rights of the artist, and as such you are ruling out any claim to Fair Use.

But what about the tutorial writers, do they qualify for fair use; after all they aim to teach?

Once again we will let you think this out for yourself, stop and think, when was the last time you seen a tutorial that concentrated on discussing an artist’s style or techniques or taught you how to achieve the same results to the actual painting?

Most tutorials we are familiar with teach how to

·        Frame an image

·        Tube an image

·        Use special filters or techniques

·        How to mask an image

·        How to create stationery

·        Show how to manipulate an image and change its format (e.g. turn a photograph into an oil painting)

·        How to use digital scrapbook kits

·        How best to present and arrange our photographs

None of these tutorials would fall into the Fair Use category; they are all about working “with” an artist’s work as opposed to discussing his personal styles and techniques.

To date... we have NOT been able to locate a tutorial that would fall into the Fair Use loophole, but we are always willing to be proved wrong. If you can think of such an example let us know, we would love to be able to show a true Fair Use tutorial in this lesson.

What about the Quotes used in some stationery, tags and wallpapers?

Fair Use would not be a viable reason to use someone else's words without permission. To use quotes, they would have to be either original to you or follow the Public Domain rules.

So when you see someone put in the footer of stationery that it was by “Fair Use” or in accordance with Title 17, you can be assured that they have read the law incorrectly or were told a mistruth about the law.

If someone advices you that it is legal to snag that tube, or tag,  because you aren't using it for profit, they are not telling you the truth and they do not understand the law.

When you create a tag; a webset; wallpaper; or stationery using someone else's art, without permission, you are breaking the law. You are not educating someone with your creations nor are you making fun of it; you are not doing a critique or writing a research paper on it.  Under Title 17, Fair Use, there is NO provision made or exceptions inserted that would allow anyone to take art without permission and use it in this manner. End of story.

Once you read and understand the Fair Use section of the law, you will have no doubts to the validity of someone using it as an excuse to steal art to make anything without gaining permission from the original artist. If you continue to use the art without permission, then you must admit to yourself that you know that you are stealing.

This lesson is the property and copyright of Terri Hopkin and Melissa Olivero; ©2005. All Rights Reserved!