Is this an example of fair use?

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  • Hello, all,

    I have displayed scans of two one-panel cartoons on my Web site, and the copyright holder alleges infringement based at least partly on economic harm, and he also implicitly denies that the fair use exception applies. (Since then I have removed the images temporarily to comply with DMCA, but I don't think their absence will make a difference to your response.)

    My questions is whether the fair use exception does apply here. (Needless to say, I think it does, but I sincerely hope that doesn't influence your opinion.)

    The pages are at and Each links to the other in the text at the word "here" if you want to switch back and forth. FWIW, the Web site is avowedly non-profit.

    I realize that ultimately it's up to a judge in a court of law, but if you were that judge how would you decide, and why?

    I'm not sure I want to defend myself in court over this, but by the same token I am not sure I'm doing anything wrong, and no one likes being bullied.

    Thanks for any advice you can offer.

  • Dear JohnnyG
    While my answer should not be considered legal advice, my opinion is that your use of Larson's cartoons is not fair use. Using the the Checklist for Fair Use three of the four criteria are opposing Fair Use. Concerning the nature of the work, it is a creative work which is against Fair Use. In regards to the amount, it is the entire cartoon which is also against. The third criteria it violates is effect, insofar as it could replace the the sale, it appears that you intend to use it long term, and it is accessible on the web without limitation. As I stated in the beginning, I am not a lawyer and this should not be considered legal advice but if I were judging this situation, I would rule against Fair Use.
  • I agree with MKardick. You have made a copy of an entire work and displayed it to the public without permission. Whether you made any profit is only one factor in fair use and in this case could still weigh against you because the owner could argue lost profit.
  • Just a couple of cents from another perspective.....While both Mkardick and LWilliamson have clearly articulated valid concerns about the possible infringement of Larson's work on your web pages, given that you did not obtain permission from the creator, I am not *wholly convinced* that your use is NOT fair. After all, your purpose is commentary and educational. To analyze and comment on a cartoon, it makes sense that you need to show the cartoon in question.

    I wonder if you did more to demonstrate the non-profit, educational and/or journalistic nature of your site, you wouldn't fare okay in a legal proceeding. While you may never mollify the creator (short of paying some kind of fee for your use), you may find support in the courts if you were providing demonstrated value to society.

    Referring to Campbell v. Acuff-Rose Music, Inc. -- an important case for the modern application of the fair use doctrine -- the Supreme Court in 1994 found that 2 Live Crew could parody 'Pretty Women" in one of their own songs. Is this a reasonable analog for the use you are making of Larson's cartoons? I guess only a judge can decide!
  • I tend to agree with GClement on this one, though it's tough to say with much confidence whether a court would rule that this is fair use. I'd say the purpose of your use is comment/criticism rather than educational, since the Web pages don't appear to be related to any specific course at an educational institution. If they were related to a specific course, then you'd go a long way toward supporting your argument that the purpose of the use is purely educational by limiting access to the Web pages to the students enrolled in the course.

    The more critical point, I think, is that your use is transformative as well as nonprofit comment/criticism. You're not just reproducing the cartoons for entertainment, you're doing it to provide examples of successful cartooning techniques, and you have included your own original commentary. While it's true that you have reproduced two entire works, you couldn't really accomplish your purpose by just reproducing portions of each cartoon. If your commentary were a little more extensive, so that the two cartoons didn't represent a fairly substantial portion of your total transformed work as a whole, then I think you'd be on safer ground, however.

    I also think you could improve the chances that a court would find this to be fair use if you had included the original copyright notice with each cartoon (e.g., (c) Gary Larson, 1988), as well as a general statement, perhaps at the bottom of your page, such as the following: "This page contains copyrighted work that has been reproduced and posted in accordance with the fair use provision of U.S. copyright law. Any further reproduction or distribution of this work may be a violation of federal law." Finally, posting the cartoons in low-res thumbnail versions (or if not thumbnails, then at least as small as you could make them while still keeping them legible) would help support a fair use argument. For an example of a favored transformative use of thumbnail images, see the Kelly v. Arriba Soft decision:

    Gary Larson has posted a statement explaining his feelings about fan sites that reproduce his work: I'm a fan of his work, and I can understand his desire to control where his "children" show up on the Web, but I don't think an artist can reasonably expect such perfect control. Once you've published your work and made it part of the culture, it enters into public discourse. Yes, you should be able to exercise commercial control over your work (for a limited time), but if others want to respond to your work and participate in the conversation you started, they should be allowed to do so when their participation is within the bounds of fair use. Again, I sympathize with the emotional side of Larson's argument, but it seems to me that he wants to suffocate his figurative children in clear acrylic boxes to keep the rest of the world from touching them!

    P.S. I just tested the link to Gary Larson's statement after posting my message and it didn't work for some reason. Go to Google and enter the search phrase (with quotes): "note from gary larson." It should be at the top of your results.

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