Dear Andy:
Thanks for your insights. Yes, a realize that, to put it mildly, there is a quite a bit of subjectivity in the way fair use is determined by actual courts and that other factors do bear on it.
The practical question is the one that faces me every day and it requires me work with copyrighted works every day. I need a method by which to judge what fair use is likely to be. The method does not admit to a lot of subtlty.
The big question I have is how, practically, do you decide when or when not to use a copyrighted image in the face of the clear disapproval of ite IP holder? How do you decide when a creative work is not creative enough?
I also do not quite understand how 100% is not substantial enough when copying a chapter of a 700 page novel, the one that happens to contain the climax is substantial enough? Does copying a whole poem of a single point infringe?
Is there anything out there that you know of that can help me evaluate such?
Bob
-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property on behalf of Andrew SkinnerLopata
Sent: Wed 10/4/2006 4:20 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: Using Logos in Wikipedia Articles without permission
If you are saying that your score on fair use is 2-1 against (because the 1st factor is neutral) and therefore there is no fair use, then yes, there is a flaw in your argument. First, a court must consider the four factors of Section 107, but they are not they only factors it can consider ("the factors to be considered shall *include* ..."). Many court opinions (including Supreme Court opinions) have affirmed this reading the the statute. I would argue that the fact that Wikipedia's use of the logo is clearly fair use under trademark law (or not infringement at all under trademark law), is a factor that weighs in favor of a finding of fair use.
Second, each factor does not necessary warrant equal weight. The Supreme
has stated that "since the [fair use] doctrine is an equitable rule of
reason, no generally applicable definition is possible, and each case
raising the question must be decided on its own facts." Harper & Row v.
Nation Enterprises (US 1985)
<http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/471/539.html>.
The court tends to emphasize certain factors over others depending on
the case. For instance, if Harper and Row the court stated that the
effect on the potential market "is undoubtedly the single most important
element of fair use," and nine years later in Campbell v. Acuff-Rose
Music, Inc., the court stated that there is no presumption or inference
that commercial use" warrants a finding of likelihood of significant
market harm. It also found that, in the context of a parody, "it does
not produce a harm cognizable under the Copyright Act."
<http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/471/539.html>
So even if your determination of which factors weigh which way is correct, you cannot conclude that there is no fair use.
-Andy
Smith, Robert E. wrote:
> Dear John:
>
> Thanks for the commentary! It is helpful.
>
> The use for the logo is for an article on the Lutheran Church--Missouri
> Synod -- and for any other article or image gallery, etc. a Wikipedia
> editor wishes to put it to.
>
> My analysis for the first factor was Wikipedia is not entitled to claim
> educational use, since it is not an accredited institution of learning.
> It is also not a commercial enterprise, nor is its purpose commerce.
> (although some entities are downloading and putting their articles for
> sale on CD-ROMs). There is no discussion of the logo on the LCMS page
> itself, although there is on the image information page. I wasn't sure
> if simply putting the image in a new context (which seems to be the
> purpose for the image to start with) would be seen as transformative. So
> I was unsure which way this factor would fall, so I deemed it neutral.
>
> For factor two, I see the logo as a work of graphic art and thus the
> factor weighing against fair use.
>
> For factor three, I see the logo being used in its entirety, and thus
> weighing against fair use.
>
> For factor four, since the image is given away free, I do not see an
> effect on the market. So this factor would tend to support fair use.
>
> I concluded, then, the use of the image was not fair use.
>
> Are there flaws in my reasoning?
>
> Bob
>
> Rev. Robert E. Smith
> Electronic Resources Librarian
> Concordia Theological Seminary
> Fort Wayne, Indiana
> "Translatio traditio est."
> -- attr. St. Jerome
>
> -----Original Message-----
> From: CNI-COPYRIGHT -- Copyright & Intellectual Property
> [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of jfnbl[_at_]earthlink.com
> Sent: Tuesday, October 03, 2006 9:05 AM
> To: CNI-COPYRIGHT -- Copyright & Intellectual Property
> Subject: [CNI-(C)] Re: Using Logos in Wikipedia Articles without
> pemission
>
> At 11:00 AM -0400 10/2/06, Smith, Robert E. wrote:
>
>> Dear Friends:
>>
>> Thanks for the responses! The issue is more complex than I expected
>> and we've already had a range of opinion.
>> I'm very interested in what others have to say on the issue. One
>> thing that confuses me. I thought that some case law is out there
>> that strictly defines the first factor term educational as an
>> activity limited to educational institutions. Does anyone know if
>> I'm correct or mistaken on the matter?
>>
>
> The first factor is much more than a distinction between commercial
> and educational use. It goes to whether the use is transformative,
> i.e. whether it puts the protected work to a new and different use,
> including commercial news, commentary, and even satire for money. I
> can't figure out from the discussion at wikpedia exactly what they
> want to do with it, but if, for instance, they were building a
> database of marks that are protected by copyright rather than
> trademark registration -- supplementing the PTO's online access to
> registered trademarks -- that would be a transformative and valuable
> use that would not interfere with the Church's use, cause customer
> confusion, or dilute the commercial value of the mark.
>
>
>> Also, is the LCMS statement inaccurate and, if so, how and what
>> would they need to include to make it accurate if it is not? (this
>> is not a request for legal advice, nor will answers be received as
>> such)
>>
>
> I looked at the policy:
> http://www.lcms.org/graphics/assets/media/LCMS/GraphicSheet.pdf#xml
> I don't know where the reputation comes from, but it strikes me as
> perfectly reasonable: "Maintaining the visual consistency of The
> Lutheran Church-Missouri Synod corporate logo is vital to preserving
> its integrity, recognition and trademark protections." Note that they
> seem to think that it's a protected /trademark/. They may assert
> copyright protection where the trademark doesn't help because there's
> no prospect of consumer confusion, but I don't get the impression
> that they're unreasonable. They seem to be more concerned with
> protecting its integrity by accurate renditions than with forbidding
> its use. They even provide detailed instructions for using the mark
> without corrupting it. I thought this part was particularly gracious:
>
> "Items for Sale: Concordia Publishing House in St. Louis has been
> given an exclusive license to sell products featuring the logo or
> church signature. However, if you wish to sell items at cost or for a
> fund-raiser (coffee mugs,T-shirts, etc.) or use such items to
> identify members (car decals, bumper stickers, lapel pins, etc.)
> within your congregation or synodical organization, you may do so. If
> in doubt, contact the Board for Communication Services to get
> permission to use the logo."
>
>
>> Finally, does anyone object to having a link to the archive version
>> of this thread put into the wikipedia discussion? If so, I will not
>> do this.
>>
>
> Nobody has a right or a reason to object to a link to this discussion.
>
> John Noble
>
>
>> Bob
>>
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