Permissions for web images that no longer exist
Hi all, I've run up against a problem that has my publisher stumped as well. If you're publishing a book or journal article and want to use pictures from a Web site, and you have the pictures but the site is no longer in existence, do you need permission? How would you handle this? And also, what is the site still exists, but all emails to the authors of the site bounce? Any help or pointers of where to look would be greatly appreciated. thanks! Mia Mia Consalvo, Ph.D. Kohei Miura Visiting Professor Department of Communication, College of Humanities Chubu University Japan Permanent address: Ohio University School of Telecommunications Athens, Ohio 45701 USA
Interesting question, the answer probably is - it depends. The law is pretty clear that most uses need permission. The exception that matters is fair use. "Four conditions govern fair use: The purpose and character of the use; The nature of the copyrighted work; The amount and substantiality of the portion used; and The effect of the use upon the potential market for or value of the copyrighted work." (Bowles, Dorothy (2004). Intellectual Property. In Hopkins, W. (Ed.) Communication and the Law, p. 129. Northport, Alabama: Vision Press.) Bowles indicates that fair use is more likely to protect: - non-profit, educational uses subject to whether the use serves the public interest of stimulating creativity; whether it does more than repackage or rephrase the original; whether it adds 'transformative value'. - copying from out-of-print works than ones available for purchase, and from more factual works than from more fictional ones. - reproducing less rather than more of a work, subject to the transformative nature of the secondary work such as the extent to which it analyzed as a work of criticism. - whether it affects the potential market for, or value of, the original work (this is the most important factor of the four). Unfortunately, there are no clear cut guides for these criteria, and the situation regarding images is especially unclear because it's difficult to excerpt an image. My guess is that use in a journal that is strictly academic would be fair use, but use in a book would be less protected depending on the nature of the book such as whether it is an academic treatise or not. None of this covers the question of whether the content of the image might itself be subject to copyright or trademark protection, such as if it contained an image of a logo, a person, or a performance; or whether the content might affect the privacy of an individual that it portrays, or be libelous in some fashion. In addition, it is likely a dangerous assumption that an image found on a website is the work of the owner of that website. Personally, I'd hesitate to use such an image especially without making a substantive effort to locate the creator to seek permission. You may have already done a whois search to identify the owner of the website but if not this might give an email address different from the one you already have. Seems odd that this question would pop up while I'm studying for my media law exam tomorrow :) All the Best, Don Holeman Master's Candidate New Media Newhouse School of Public Communications Syracuse University 860.424.2599 djholema@syr.edu dholeman@twcny.rr.com -----Original Message----- From: air-l-aoir.org-bounces@listserv.aoir.org [mailto:air-l-aoir.org-bounces@listserv.aoir.org] On Behalf Of Mia Consalvo Sent: Wednesday, April 27, 2005 2:03 AM To: air-l@aoir.org Subject: [Air-l] Permissions for web images that no longer exist Hi all, I've run up against a problem that has my publisher stumped as well. If you're publishing a book or journal article and want to use pictures from a Web site, and you have the pictures but the site is no longer in existence, do you need permission? How would you handle this? And also, what is the site still exists, but all emails to the authors of the site bounce? Any help or pointers of where to look would be greatly appreciated. thanks! Mia Mia Consalvo, Ph.D. Kohei Miura Visiting Professor Department of Communication, College of Humanities Chubu University Japan Permanent address: Ohio University School of Telecommunications Athens, Ohio 45701 USA _______________________________________________ The Air-l-aoir.org@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org Join the Association of Internet Researchers: http://www.aoir.org/
I concur with Don Holeman's suggestions -- as the editor of an online academic journal, I would certainly argue that use of the images for purposes of critique or rhetorical effect in a scholarly work constitutes fair use, and in fact would prefer that authors work under that assumption and *not* make an effort to secure copyright permissions in those cases (because the query weakens the fair use exception, and because most, if not all, commercial copyright owners will say "no" regardless of fair use). But this particular question relates to the issue of orphan works -- what if you can't find the copyright owner? There is a project currently underway to suggest alternatives to current copyright law with regard to orphan works (which, fair use aside, basically leaves you SOL); you can find out more about the problem and proposed solution at http://eldred.cc/ In a similar vein, if you are the originator of a work that is hosted on the Internet (and might, therefore, be a candidate for orphan status at some time in the future, as sites migrate or hosts change ownership, etc.), I strongly recommend licensing your work under a creative commons license (http://creativecommons.org) --if you are able to do so, which may not be the case if you are doing work for hire for instance -- so that future scholars and researchers won't have to make the decision to not use (or cite) your work in the future. Douglas Eyman, co-Editor Kairos: A Journal of Rhetoric, Technology, and Pedagogy http://english.ttu.edu/kairos/ ----- Original Message ----- From: "Cox" <dholeman1@cox.net> To: <air-l@listserv.aoir.org> Sent: Wednesday, April 27, 2005 4:27 AM Subject: RE: [Air-l] Permissions for web images that no longer exist (APPLY IT)
Interesting question, the answer probably is - it depends.
The law is pretty clear that most uses need permission. The exception that matters is fair use.
"Four conditions govern fair use:
The purpose and character of the use; The nature of the copyrighted work; The amount and substantiality of the portion used; and The effect of the use upon the potential market for or value of the copyrighted work."
(Bowles, Dorothy (2004). Intellectual Property. In Hopkins, W. (Ed.) Communication and the Law, p. 129. Northport, Alabama: Vision Press.)
Bowles indicates that fair use is more likely to protect:
- non-profit, educational uses subject to whether the use serves the public interest of stimulating creativity; whether it does more than repackage or rephrase the original; whether it adds 'transformative value'.
- copying from out-of-print works than ones available for purchase, and from more factual works than from more fictional ones.
- reproducing less rather than more of a work, subject to the transformative nature of the secondary work such as the extent to which it analyzed as a work of criticism.
- whether it affects the potential market for, or value of, the original work (this is the most important factor of the four).
Unfortunately, there are no clear cut guides for these criteria, and the situation regarding images is especially unclear because it's difficult to excerpt an image.
My guess is that use in a journal that is strictly academic would be fair use, but use in a book would be less protected depending on the nature of the book such as whether it is an academic treatise or not.
None of this covers the question of whether the content of the image might itself be subject to copyright or trademark protection, such as if it contained an image of a logo, a person, or a performance; or whether the content might affect the privacy of an individual that it portrays, or be libelous in some fashion. In addition, it is likely a dangerous assumption that an image found on a website is the work of the owner of that website.
Personally, I'd hesitate to use such an image especially without making a substantive effort to locate the creator to seek permission. You may have already done a whois search to identify the owner of the website but if not this might give an email address different from the one you already have.
Seems odd that this question would pop up while I'm studying for my media law exam tomorrow :)
All the Best, Don Holeman
Master's Candidate New Media Newhouse School of Public Communications Syracuse University 860.424.2599 djholema@syr.edu dholeman@twcny.rr.com
-----Original Message----- From: air-l-aoir.org-bounces@listserv.aoir.org [mailto:air-l-aoir.org-bounces@listserv.aoir.org] On Behalf Of Mia Consalvo Sent: Wednesday, April 27, 2005 2:03 AM To: air-l@aoir.org Subject: [Air-l] Permissions for web images that no longer exist
Hi all,
I've run up against a problem that has my publisher stumped as well. If you're publishing a book or journal article and want to use pictures from a Web site, and you have the pictures but the site is no longer in existence, do you need permission? How would you handle this?
And also, what is the site still exists, but all emails to the authors of the site bounce?
Any help or pointers of where to look would be greatly appreciated. thanks! Mia
Mia Consalvo, Ph.D. Kohei Miura Visiting Professor Department of Communication, College of Humanities Chubu University Japan
Permanent address: Ohio University School of Telecommunications Athens, Ohio 45701 USA
_______________________________________________ The Air-l-aoir.org@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
Join the Association of Internet Researchers: http://www.aoir.org/
_______________________________________________ The Air-l-aoir.org@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
Join the Association of Internet Researchers: http://www.aoir.org/
yes, that is true... but one thing that seems to indicate that people are not defending their copywrite stringently is if their material is in a publicly available in another form, for instance, if it is in archive.org's wayback machine, then you can use that version instead of the version that you are using. does that remove your obligations as described below... not really, but this site is where i send people who need more exact answers http://fairuse.stanford.edu/ On Apr 27, 2005, at 4:27 AM, Cox wrote:
Interesting question, the answer probably is - it depends.
The law is pretty clear that most uses need permission. The exception that matters is fair use.
"Four conditions govern fair use:
The purpose and character of the use; The nature of the copyrighted work; The amount and substantiality of the portion used; and The effect of the use upon the potential market for or value of the copyrighted work."
(Bowles, Dorothy (2004). Intellectual Property. In Hopkins, W. (Ed.) Communication and the Law, p. 129. Northport, Alabama: Vision Press.)
Bowles indicates that fair use is more likely to protect:
- non-profit, educational uses subject to whether the use serves the public interest of stimulating creativity; whether it does more than repackage or rephrase the original; whether it adds 'transformative value'.
- copying from out-of-print works than ones available for purchase, and from more factual works than from more fictional ones.
- reproducing less rather than more of a work, subject to the transformative nature of the secondary work such as the extent to which it analyzed as a work of criticism.
- whether it affects the potential market for, or value of, the original work (this is the most important factor of the four).
Unfortunately, there are no clear cut guides for these criteria, and the situation regarding images is especially unclear because it's difficult to excerpt an image.
My guess is that use in a journal that is strictly academic would be fair use, but use in a book would be less protected depending on the nature of the book such as whether it is an academic treatise or not.
None of this covers the question of whether the content of the image might itself be subject to copyright or trademark protection, such as if it contained an image of a logo, a person, or a performance; or whether the content might affect the privacy of an individual that it portrays, or be libelous in some fashion. In addition, it is likely a dangerous assumption that an image found on a website is the work of the owner of that website.
Personally, I'd hesitate to use such an image especially without making a substantive effort to locate the creator to seek permission. You may have already done a whois search to identify the owner of the website but if not this might give an email address different from the one you already have.
Seems odd that this question would pop up while I'm studying for my media law exam tomorrow :)
All the Best, Don Holeman
Master's Candidate New Media Newhouse School of Public Communications Syracuse University 860.424.2599 djholema@syr.edu dholeman@twcny.rr.com
-----Original Message----- From: air-l-aoir.org-bounces@listserv.aoir.org [mailto:air-l-aoir.org-bounces@listserv.aoir.org] On Behalf Of Mia Consalvo Sent: Wednesday, April 27, 2005 2:03 AM To: air-l@aoir.org Subject: [Air-l] Permissions for web images that no longer exist
Hi all,
I've run up against a problem that has my publisher stumped as well. If you're publishing a book or journal article and want to use pictures from a Web site, and you have the pictures but the site is no longer in existence, do you need permission? How would you handle this?
And also, what is the site still exists, but all emails to the authors of the site bounce?
Any help or pointers of where to look would be greatly appreciated. thanks! Mia
Mia Consalvo, Ph.D. Kohei Miura Visiting Professor Department of Communication, College of Humanities Chubu University Japan
Permanent address: Ohio University School of Telecommunications Athens, Ohio 45701 USA
_______________________________________________ The Air-l-aoir.org@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
Join the Association of Internet Researchers: http://www.aoir.org/
_______________________________________________ The Air-l-aoir.org@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
Join the Association of Internet Researchers: http://www.aoir.org/
jeremy hunsinger jhuns@vt.edu www.cddc.vt.edu jeremy.tmttlt.com www.tmttlt.com () ascii ribbon campaign - against html mail /\ - against microsoft attachments
If the publisher wants you to get permissions, but you've got not ready access to the permission holders (or even any sense who those might be), there's always the sort of notice/disclaimer that reads something like: "every effort has been made to secure permission for use of copyrighted materials. in the event of a copyright query, please contact the publishers." Your publisher may not want to do that, but it's a common enough practice that it's worth asking about. If nothing else, it helps to demonstrate that you did, in fact, engage in good faith efforts to locate relevant copyright holder -- especially if you keep a paper/e-mail trail of those efforts. cheers gil At 4/27/2005 @ 01:03 AM, you wrote:
Hi all,
I've run up against a problem that has my publisher stumped as well. If you're publishing a book or journal article and want to use pictures from a Web site, and you have the pictures but the site is no longer in existence, do you need permission? How would you handle this?
And also, what is the site still exists, but all emails to the authors of the site bounce?
Any help or pointers of where to look would be greatly appreciated. thanks! Mia
Mia Consalvo, Ph.D. Kohei Miura Visiting Professor Department of Communication, College of Humanities Chubu University Japan
Permanent address: Ohio University School of Telecommunications Athens, Ohio 45701 USA
_______________________________________________ The Air-l-aoir.org@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
Join the Association of Internet Researchers: http://www.aoir.org/
participants (5)
-
Cox -
Douglas Eyman -
Gilbert B. Rodman -
jeremy hunsinger -
Mia Consalvo