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Fair Use and My Web Copyright Philosophy

Once again a SquidU forum post spun off a riff for me, this time on Copyright and fair use.

I am chaotic good, to borrow the old term from D&D: I don’t obey the rules precisely so much as try to understand why the rules are there and then do what’s best for the people impacted by them.

I am much less rigid about copyright when it comes to stills and screencaps and even fanvids of well-known movies and video games. If someone’s got a Yoda icon or a fanpage on a favorite video game, I absolutely do not get my knickers in a bunch. Everybody knows who Yoda is, and that Yoda icon is going to remind you of Star Wars and maybe even go look up the Yoda lightsabre duel video clip and maybe from there think about buying a Yoda doll or a Blu-Ray Star Wars disc (if you can stomach Lucas’ latest fiddling).

Whereas when it comes to copying a photo or piece of art from someone’s Flickr stream or DeviantArt or the like, I’m much more strict. I’ll only use Creative Commons images. If it’s reproduced somewhere else, such as on Wikipedia, I follow the CC link back to its source  to double-check the terms of use and make sure the owner really did give permission for reuse. I am also much more careful about credit when it comes to art and photos from individuals. DeviantArt’s embed codes include a small thumbnail plus the artist’s name and a link to his/her profile, so I use those as is, but Wikimedia Commons and Flickr do not include the photographer/artist’s name in their embed codes, just an image linked back to the source. That’s not good enough for me. I always add an image caption to those, including the photographer or artist’s name, with a visible, clickable link back to the source (not just a hidden clickable link attached to the image).

Am I being hypocritical? Why am I so picky about copyright for stock photographers, Zazzle artists, and their ilk when I will use stills to illustrate an article on the Lord of the Rings films without batting an eyelash?

Well, one can argue that stills from films fall under the “amount and substantiality” factor of fair use, the aspect of copyright law that lets you use a quote or short excerpt. Whereas a copy of a photo is not an excerpt; it IS the photo and competes with it in search results, commercially, and functionally. (Also, there’s the whole “permitted for critique/commentary” aspect of fair use: if you’re writing a fan page about a movie, then it’s commentary; if you’re using someone’s photo as a free illustration for a blog post that has nothing to do with that artist’s work, then it’s exploitation).

But that’s not really why I make the distinction between the two kinds of sources.

The Lord of the Rings films are famous and successful, instantly recognizable. Any publicity they get reminds people of the films which they already know.

Not so with a photo or piece of artwork from somebody unknown. In that case, the image is a signpost to the person’s work, their calling card and their chief asset.  Jane Q. Photographer might have shared some photos on Stock Xchng or Flickr with a Creative Commons license, hoping to get recognition and drum up publicity for her blog or photography site. I want to help Jane by giving her a visible credit and a backlink and observing her terms of use carefully, since even one backlink spotted by the right person might land her a job, an offer to license the photo, or lots of traffic from a big website that also likes and uses the photo with the CC credit and backlink.

As a matter of fact, this odd distinction I make is another of the Four Factors of Fair Use, one that’s not well-understood: “The Nature of the Copyrighted Work.” Fair use grants more leeway in using a published than unpublished work. I used to find this aspect of Fair Use baffling. Now my understanding is that if a work is already published, out there, successful, widely known, and making money, then your use of an excerpt is less likely to compete with it than if the artist is still trying to become known and hasn’t quite figured out how to make money from that image or creation. (Which is not to say one gets carte blanche to print up and sell T-shirts with your fanart of Sean Bean as Boromir in The Lord of the Rings. It’s just that one has slightly more leeway).

How much is too much? There’s no hard and fast rules. In a copyright lawsuit, the judge has to make a ruling based on his interpretation of the four factors of Fair Use and how they seem to apply to that particular case.

As always with fair use, the hardest part about it is that it depends on human judgment of individual circumstances  rather than a fixed, rigid set of rules. The four factors are guidelines that can help us feel our way.


Update: SPEAKING OF FAIR USE, check out these utterly adorable and highly creative parodies of Star Wars crossed with Winnie the Pooh: Wookie the Chew.” Yep, that there would fall under the “Transformative” factor of Fair Use (and parody, which is almost always Fair Use).


  1. Flynn says:

    Speaking of LOTR, I saw Ian McKellen do a show yesterday <3

    1. Greekgeek says:

      *Squee* Sir Ian is so naughty adorable charming in an “old wise guy with reams of experience” way. I am jealous!

      1. Flynn says:

        Yes! He was delightful. Tolkien and Shakespeare and Wordsworth, and he was very interactive with the crowd (let everyone take photos with him, including me, and had half the audience on stage for a quick skit).

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