Using wine bottle labels online
- May 8, 2006 @ 2:53pmender says:First off, this site seems like a great resource. Just reading through some posts I've learned quite a bit.
Anyway, I'm wondering about the use of product labels online. Specifically, how a site like cellartracker.com can store and then show wine labels.
Here's an example:
Basically at the site users can create lists of the bottles they have in their wine cellars, and then optionally add an image of each bottle label.
What surprises me is that people's lists are publicly viewable, so it isn't just them seeing the wine label, it's anyone.
I have nothing against cellartracker, believe me. I hope your answer is that their use is OK, and regardless any answer I get here I won't be going to them with it!
The only reason I'm asking is for a similar application in another field.
Anyway, thanks a ton for any help!
- May 9, 2006 @ 6:56amGClement says:Your question is a good one!
This is my "I'm not a lawyer, but this appears to be a straightforward case of fair use" reply....
My understanding is that the use of wine bottle pictures in Cellartracker is much like the use of book covers in Amazon -- both are reproducing a small portion of the original work at a low-quality resolution for the purpose of commentary and public discourse. If there is any impact on the owners of the wine bottle label copyright, it is likely a positive one because the commentator is providing free advertising for a commercial product. It is hard to imagine that the versions of the labels digitally reproduced on Cellartracker could ever substitute for actual labels. Just as the pictures of book covers on Amazon are unlikely to substitute for the book covers themselves.
Nonetheless, whether the Cellartracker case is indeed an example of Fair Use is a matter of individual analysis. The four factors to consider in making such an analysis are: (1) Purpose; (2) Nature; (3) Amount; (4) Effect (reference the Fair Use checklist at http://www.copyright.iupui.edu/checklist.pdf). In determining whether your anticipated use of copyrighted works is protected by the Fair Use Doctrine, you need to make a determination based on the specifics of *your* case. What may or may not apply in the Cellartracker case isn't necessarily going to apply in your situation.
- May 9, 2006 @ 7:16amRDavis says:Hi -- It appears to me that all of the images on the site are thumbnails. Also, the "Professional Tasting History" section of the site where users post their images of the label is described on CellarTracker's terms & conditions (T&C) page (http://www.cellartracker.com/terms.asp) as being for private, noncommercial use only. The fact that others can view others' tasting notes and label images does seem to undermine how truly "private" the use is, but in any case I think the use of the label images qualifies as fair use. The purpose is (probably) commercial, though the site owner maintains otherwise. CellarTracker provides links to buy the wines described on the site from Wine-Searcher.com, but it isn't clear if there is a commercial relationship between the two sites. But the CellarTracker site hosts paid advertisements, so they are generating revenue at least from that. But the use of the images on CellarTracker is a transformative use, similar to copying images from the Web and posting them as thumbnails in an image search engine (cf. the Kelly v. Arriba Soft case -- http://images.chillingeffects.org/cases/Kelly_v_Arriba.html). The use in Kelly v. Arriba Soft was similarly commercial and transformative, and the Court ruled that the social benefit of the transformative use tipped this factor in favor of fair use. The nature of the label image is creative and yet "published" (i.e., distributed on bottles), so this factor weighs slightly against fair use. The amount of the image used is often the entire label, but it seems to me that only as much as would be necessary to allow other CellarTracker readers to find and identify the bottle is used (i.e., the amount of copying isn't gratuitously excessive). In Kelly v. Arriba Soft this factor was found to be neutral vis-a-vis fair use. The market effect is minimal to non-existent in my opinion, since only thumbnails are provided and they can't substitute for the original artwork. CellarTracker seems to have covered their bets on the fair use issue by including in their T&C a notice that anyone posting third party copyrighted materials must be "authorized" by the copyright owner to do so. But I'm sure that none of their users is actually seeking such authorization before posting a label image on the site. This gives CellarTracker an out, though, if a copyright owner complains -- CellarTracker can just pull the user's post from the site because they didn't have the authorization required in the T&C; unfortunately, whether the use was a fair use or not probably wouldn't even be considered, and thus we see (once again) the chilling effect of excessive litigation on fair use. I've quoted the relevant part from CellarTracker's T&C below. As for trademark infringement, I don't think the site presents a problem there either. Once again, the use of any trademarked brands, logos, etc. on the site is only to identify the product ("nominative" fair use), and the site doesn't mislead or suggest that it has any affiliation with the products reviewed there. So I agree with GClement that this seems to be a straightforward case of fair use -- but, like her, I'm no lawyer, and any project you're considering launching will have to be considered on its own merits. From CellarTracker! terms and conditions: "4. Third Party Materials. THE PORTION OF THE SERVICE TITLED “PROFESSIONAL TASTING HISTORY” IS AVAILABLE SOLELY FOR YOUR OWN PRIVATE, NONCOMMERCIAL USE, AND IS NOT FOR USE BY OTHERS. You may post limited excerpts of Third Party Materials only to your own "Professional Tasting History" section of the Service, provided that you are authorized to receive, access and use such Third Party Materials and comply with all terms and conditions imposed by the third party copyright owner for such use, such as reproducing applicable proprietary notices or other requirements. ONLY THE COPYRIGHT OWNER IN THE THIRD PARTY MATERIALS CAN AUTHORIZE THE USE, DISPLAY, REPRODUCTION OR DISTRIBUTION OF THIRD PARTY MATERIALS. a. You may not post, input or copy (whether literally or in paraphrase) any Third Party Materials, in whole or in part, on any other portion of the Service, and you may not rent, loan, sub-license, lease, distribute or otherwise attempt to grant access to such Third Party Materials to any third parties. You shall not attempt to gain access to Third Party Materials posted by another user. b. You represent and warrant that you have the right to receive, access, use and post such Third Party Materials on the Service and to transmit to and authorize CellarTracker to use the Third Party Materials for the purpose of providing the Service to you."
- May 9, 2006 @ 8:22amender says:Thank you both very much for those responses. In both cases your "talking through" of the situation really helped. So basically that was exactly what I was hoping to find out - how things like this work.
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