Date: Tue, 18 Aug 1998 00:50:13 -0400
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Hi, Linda--I'm delighted to see that you checked with your lawyer here.
Please don't wimp out just because the Webbed warnings from Hollywood say
people can't reproduce photos. The issue is not as black and white as some
might think. It isn't merely a question of watching out for people's
posteriors. Stay true to the fair use doctrine. Aren't there still a few
things that separate journalists from butchers and insurance reps? If the
press does not exercise fair use, it'll shrivel away--and one day we may
reach the point where even governors will put up official photos with
copyright warnings. In fact, that's exactly what happened in one situation
in the state of Georgia.
So why not stand up here for fair use and the 1st Amendment? Remember,
there's a difference between movie studios posting copyright warnings and
their actually acting on them. If your lawyer lets you, force the bullies
at the studios to take the initiative with warning letters or other
intimidation. I know most newspaper chains are wimps, but it would be nice
to see some guts here if the law is fuzzy in your case or, better still,
clearly supports you. Loved your lawyer's first reaction as reported in
your note below! Feel free to show him this message to reinforce his better
instincts.
One important aspect of copyright law here is whether financial damages
have resulted. If you use an image and link to the originating site, you're
actually driving traffic to it--in other words, hardly lessening the
promotional value of the image and the Hollywood site in general. If a
review is negative, some might argue that your newspaper harmed the studio.
But then again, the possible presence of criticism is one of the criteria
associated with the applicability of the fair use doctrine.
Without doubt it's time for SDX, the Reporters Committee for Freedom of the
Press and similar groups to take aggressive stands in favor of fair use of
Web images if they haven't already. Otherwise reporting on both business
and government may suffer if the industry wimps out. Today's Web is a
visual medium; images are integral. Media lawyers should keep this in mind
in determining how much a publication can pick up from another site in the
interest of enlightening readers. Movie sites don't just choose images at
random. They select those that communicate the essence of a film--the very
stuff on which your reviewers are commenting.
Even book publishers are divided over the unauthorized use of images.
Consider all the computer books with pictures of Web sites that are under
discussion. I can personally say that some book editors urge writers NOT to
ask for permission, lest it hold things up. Happened to me when I was
working on a book project for a tentacle of Viacom, which, as I recall, has
a few Hollywood connections. And the editor said his people had checked
with a lawyer!
So what determines fair use? I'll quote from
http://www.benedict.com/fringe/fairtest.htm#Top within www.benedict.com
-- The Copyright Web Site. It's run by Benedict Mahoney, an attorney with
seven years of intellectual property experience, according to
http://www.benedict.com/source/resume.htm#resume. Mahoney notes the four
big factors that courts consider in fair use cases:
1.the purpose and character of the
use, including whether such use is
of a commercial nature or is for
nonprofit educational purposes;
[Your use will be journalistic, not for a rival studio.
No, a newspaper isn't a school or philanthrophy, as any
reporter knows on payday. But keep in mind that the
studios are supposed to WANT publicity. PR efforts
inherently proclaim material as newsworthy--and that may
unwittingly strengthen the fair use argument. Besides, do studios
really think that every movie-goer will search out the
official site? Another factor, in determining the nature
of the use, is whether it's in the context of
criticism. Would seem to be true in your people's case!]
2.the nature of the copyrighted work;
[If it's a movie, it's probably fiction to one extent or another.
That hurts the fair use case. Then again,
a photo of an actor would be nonfiction.
And what if a key image is used again and
again and in effect
functions as a logo? Then the newsworthy argument just might
might be enough to overcome other things. Does your biz
page ask for permission whenver it prints
a Coke logo?]
3. the amount and substantiality of the
portion used in relation to the
copyrighted work as a whole; and
[You may be picking up an entire image. But you're hardly ripping
off an entire site or an entire movie or whatever is the TRUE product
being promoted in accordance with the main mission of the site.
No, you're just reproducing an image or two, or contemplating
that.]
4.the effect of the use upon the
potential market for or value of the
copyrighted work.
[Ah! Here's where you may have the biggest advantage. Even bad reviews
create
exposure for the movies and might make studios RICHER. In any event
a bad review would make the criticism angle more valid. As for stealing
money from poster revenue, the reverse might be true. You might be
increasing demand for posters since Web images are hardly of the same
quality.]
Please note that I'm fervently in favor of copyright. What's more, I'd urge
you to credit the studios and link back to their sites. I'm an incorrigible
capitalist and hate misuse of anyone's property. But, please, there is a
difference between true ripoffs and limited reproductions that actually are
good for the studios or at least fall under fair use. Worry about the
spirit of the copyright laws, not just the letter as interpreted by Hollywood.
I hope that the upshot of this is that you and your lawyer will work to
educate editors and writers as to when fair use applies. Ask staffers to
consult with you in cases of the slightest doubt; if need be, you can
consult with the lawyer. But please don't be bureaucratic about it and
require memos in each case. You'll just get in the way of your folks' doing
their jobs. What's more, you may be interfering with the work of other
journalists, too, if you routinely require permission from the studios
themselves. Let's not spoil Hollywood and grovel to get what's lawfully
ours when fair use applies. Give in to those pushy greedsters, and before
you know it, they won't let you use their precious little images unless
they can vet your reviews before publication.
Good luck with this, and thanks for sharing your extra-useful questions!
David Rothman | rothman@clark.net | 7034-370-6540
TeleRead: Bring the E-Books Home: http://www.teleread.org
Author, "Copyright and K-12: Who Pays in the Network Era?"
http://www.ed.gov/Technology/Futures/rothman.html
[The above may be reproduced without the slightest hassle. No permission
needed from studio lawyers!]
At 02:53 PM 8/14/98 -0500, Linda Ash wrote:
>-----------> This message was posted to the ONLINE-NEWS list. <-----------
>
>Have any of you addressed these problems? And how did you
>handle them?
>
>1. We are debating the use of images that we use with our
>movie and CD reviews. There are images on "official" sites
>promoting movies and CDs that some of the editors here would
>like to use. I have warned the editors not to pull images
>off of another site without permission from the site
>owner...of course, the editors have attempted to get that
>permission from some of the movie sites via e-mail, but no
>one ever got back to them. (All of these sites have warnings
>not to use their copyrighted images)....would you ignore
>these warnings and use the images if they go with a review of
>a particular movie or cd?
>
>2. How do you handle corrections?
>
>3. Are any of you saving images of what your site looks like
>for archiving purposes? Right now, I don't believe we have a
>copy of what our site looked like three years ago.
>
>Thanks!
>
>Linda Ash
>New Media Managing Editor
>San Antonio Express-News
>http://www.expressnews.com
>210-250-2924
>
Eric:
Thank you for your input. I've put in a call to our media
attorney on the images question...he just called back and
said at first glance he believes that it comes under fair
use, but he wants to study it further. (I agree with you,
but I thought I would throw this out...at this point I do not
allow the online editors to take images off of another site
without written permission to do so. This question came up in
a conversation yesterday).
Linda Ash
New Media Managing Editor
San Antonio Express-News
http://www.expressnews.com
210-250-2924
>
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