Re: fees for fair use in books

The use as described seems to be fair use under U.S. law (but it is a very fact-sensitive inquiry)(I cannot speak to Canadian law).

What is going on is that the person in possession of the image is trying to exploit it for money. That is all. You may have a right to reproduce an image that you have in your possession provided you obtained it lawfully, but fair use does not require anyone to make an image available to you at no cost or at any price.

Fair use gives you essentially a defense against infringement, not an affirmative bludgeon with which to force someone to give you something for nothing.

Also, remember that the intellectual property (copyright) is separate from the embodiment of it. If I own a copy, I do not need to show it to anyone or let anyone copy it.

This is true whether there is a copyright on the article or not.

So, if I owned an ancient Minoan sculpture, I could prohibit anyone from reproducing it or seeing it, even though the work of art is almost certainly out of copyright -- and has been for some 3200 years.

Hope this helps.

Steve

On Jul 27, 2005, at 5:55 PM, Robert Labossiere wrote:

> I am working for a small art book publisher. Our books are quite
> specialized; often they are anthologies of critical/theoretical
> essays. My understanding is that reproduction of art works within
> such essays is a "fair use" in the US and "fair dealing" in Canada,
> i.e. exempted from the need to secure permissions and/or pay fees.
> Yet, if we ask an institution for an image for reproduction, what
> we get back is an offer to license, for a fee. What is going on here?
>
> Robert Labossiere, MFA, Ll.B.
> Toronto
>

-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
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