Creating posters for school assembly using superhero images
- January 10, 2007 @ 4:51pmshorty says:Our theme for a school assembly is "superheroes." Each class is creating an original poster using a super hero such as Superman, Spiderman, Incredibles, etc. to represent their class for the assembly. Is this okay or are we violating copyright?
- January 12, 2007 @ 8:05amwilliamsonl says:Here's one fair use analysis:
1. For --the use is educational
2. Against--you are using the entire image, the image is creative and the effect on the market is negative (if everyone draws their own instead of purchasing).
Having thus said, I would like to see if someone can do a fair use argument that comes out for use? I would be willing to be persuaded. - January 13, 2007 @ 3:35pmksmith says:I will take up the challenge of arguing that this purposed use is a fair use. I agree with LWilliamson about the first three fair use factors, but not about the fourth -- impact on potential markets. In this situation, I would argue, drawing the characters is an integral part of the educational activity. Since the legitimate educational purpose can not be accomplished without having the students actually draw the characters, a purchased poster, even if one were available, would not serve the same goal. Therefore the impact on a potential market is nonexistent, since no potential sale is lost through the activity. With the first and fourth factor favoring fair use, this activity seems like a safe bet.
Which brings me to a different point. Since fair use functions like an affirmative defense -- you have to be sued in order to find out if your use really was fair -- a fair use analysis is always a risk assessment. This realization has two consequences. First, in this situation the risk is quite low, especially if the school is a public school, where there is no commercial advantage to be gained (unlike the day care centers that were threatened for painting Disney characters on the walls). Here the use is distinctly private and ephemeral with no profit that can be attributed to the use, so I think it is low risk. Second, I have seen on this forum the argument that small educational institutions should avoid any situation in which even a meritless infringement claim might be made against it, because of the cost of defending a claim. But because fair use is always risk management, this argument would entirely gut section 107. I think that where educational institutions have situations like this one, where fair use is necessary in order to accomplish a legitimate instructional purpose, they should take advantage of their fair use right when the risk is so low.
Lots to argue with here, I know, so please chime in. - May 17, 2007 @ 8:09amMBRUNS says:I have a related question. At my university there are student organizations that have themed events, such as a dance or exhibit booths highlighting their organization. The themes have been superheroes, Nightmare Before Christmas and this year it will be '80's culture. They want to create decorations and promotional materials using the theme. This includes posters and Powerpoint presentations using purchased and created materials. I do not think this is permissable under fair use. Is there an organization that licenses images of celebrities, movies, popular culture, etc.?
- May 18, 2007 @ 4:16amAFry says:Short answer:
Assuming the use isn't fair, I'd try the Copyright Clearance Center (www.copyright.com) first.
You are obviously in a better position to judge than I am, but this sounds like fair use to me. I'll address this when I have time.
I'll also see if I can get you a better answer on the licensing question. - May 19, 2007 @ 6:59amAFry says:My very brief look at the Copyright Clearance Center suggests to me that they won't be able to help.
I don't think I can answer your licensing question. I'm not sure this will help, but here are some links about permission from our web site: http://librarycopyright.net/wordpress/?page_id=10
However, my gut feeling is that this is fair use. If it's legal to create a myspace page containing movie posters, album covers, tv stills and cast photos (http://profile.myspace.com/index.cfm?fuseaction=user.viewprofile&friendid=879722), and I believe it is, why wouldn't it be legal for for students to have a themed event?
Four factors:
1. Character of use: educational, or at least non-commercial, for fair use
2. Nature of work: creative, against fair use
3. Amount used: depends, let's assume against fair use
4. Market effect: none. If students were given the choice of paying for permission or choosing another theme, I think they'd choose another theme. I think for fair use.
I believe that factors 1 and 4 are the most important in this scenario, so I see this as clearly fair use.
As I said, you are in a better position to judge than I am, but I just don't see this as a problem. - May 22, 2007 @ 10:06amMBRUNS says:Thanks for your response. I have a somewhat different take on whether or not this is a fair use of the images.
Here’s my Fair Use Factor analysis:
1. Character of the use – this use has nothing to do with teaching or scholarship, it just happens to occur on a college campus. The purpose is to capture attention and encourage students to join campus organizations. So I see that as a factor disfavoring fair use.
2. Nature of the work – creative, so, as you say, disfavoring fair use
3. Amount used – assumes they copy an entire photograph or movie poster or character. I think this disfavors fair use although with images, I’ve read that this has less of an impact because if you can’t use the entire photograph, image, etc, it’s meaningless.
4. Market effect – if there is a permissions market for this (and I suspect there is) then widespread use of this sort would have a negative effect on the market. So I think this also disfavors fair use.
So my interpretation, and I realize that different people can interpret fair use differently, is that this fails on all four factors.
As for MySpace, I do not believe people can legally post creative content that belongs to someone else onto their profile. In their FAQ section they even address copyright and how to report a copyright violation. Their Terms of Use also addresses this in several places, more specifically
“Copyright Policy. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of MySpace.com to terminate Membership privileges of any Member who repeatedly infringes the copyright rights of others upon receipt of proper notification to MySpace.com by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the MySpace Services in a way that constitutes copyright infringement, please provide our Copyright Agent….”
They do not monitor the content either, but rely on people to report violations. So I’m not surprised if there is a good deal of copyrighted material on MySpace that shouldn’t be there.
If I find a source that licenses the images we are interested in, I’ll post a reply here. If anyone else knows of such a source, I’d love to hear it. - May 25, 2007 @ 7:37amAFry says:Now I understand.
Please don't think I'm trying to coerce you into accepting an interpretation which makes you uncomfortable. You have to live with the decision; I don't.
However, I don't think that the permissions market should be used in a market effect analysis. My thinking has been heavily influenced by an article in the University of Pittsburgh Law Review by Ann Bartow. I quoted two relevant paragraphs on another thread. Scroll down to post #7. http://www.librarycopyright.net/wordpress/punbb/viewtopic.php?id=108
If you're not convinced, that's fine. As I said, you are the one who needs to be comfortable with the decision, not me.
I think we're going to have to agree to disagree on MySpace. The FAQ don't mention fair use at all, so I don't consider the FAQ a reliable source of information about copyright. I believe that MySpace has chosen to take an ultra-conservative stance. Feel free to disagree.
I've tried to find a licensing agency for images, and I've reached the conclusion that there isn't one to be found. One reason for this conclusion is that I think if one existed, it would be on this page: http://www.utsystem.edu/ogc/intellectualproperty/permissn.htm . The movie sites seem to deal only with public performance of videos. However, if you find a licensing organization, I'd certainly like to know about it.
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