Re: Use of TV Pictures/Sounds on Web Sites

Marilyn Fogelsinger <mfogelsinger[_at_]earthlink.net> wrote:
>
> My question may seem pretty basic, but please bear with me. I'm a law
> student in Michigan, and for a class paper, I'm studying the use of
> photos on "unauthorized" web sites.
>
> In particular, my question is this. Fox Network has recently "shut
> down" many "unauthorized" X-Files web sites for copyright violations.
> These pages had downloadable pictures, sound clips, and Win 95 Themes
> from the TV show. None of these pages charged for the materials, and
> none of them "debased" the materials in any way. Is there a "fair use"
> exception for web pages like this, or is there any other way (short of
> paying royalites, fees, etc.) that such a web page administrator may
> use these copyrighted materials? Any insights would be most
> appreciated.

Since this is your law school assignment, I am assuming that what you need is help getting started with your research and you are not just expecting anyone to lay it out and make it easy for you. (I used to teach Legal Research, uh-oh...)

You first need to ascertain whether the images are copyrightable subject matter under the statute and what rights the statute says (or does not say) that the owners to those images have, to allow or restrict their distribution. You bring up another issue which is whether it is relevant that those images are "debased." That seems to be a question in the area of "moral rights" so you may want to determine whether you think section 106A of the US Act applies to the types of works (electronic images) in question.

I suggest you then check the fair use provision of the US Copyright Act, 17 USC s. 107. Basically the judicial application of this provision to any particular situation requires the balancing of four factors; so the probable application of fair use factors to your scenario depends for the most part on comparisons to existing non-Internet cases (although you may find a few Internet-era cases on fair use). So, you should check the treatise Nimmer on Copyright under Fair Use, to get a thorough grounding in the fair use topic, pre-Internet. Then, since you have free access to Westlaw and/or Lexis as a student, I would suggest you do a word search for recent cases involving (a) the West key number for copyright fair use; (b) "web" or "website" and "photo*" etc. Some of these cases have been put on the web by well-meaning individuals and as breaking news by various organizations, but most of the Internet-era precedents are still only available through these expensive proprietary subscription-based databases.

With regard to resources on the Internet, you should first start with the searchable archives of this list at http://www.cni.org/Hforums/cni-copyright/. Your topic has been discussed many times on this list and on another list, cyberia-l, in various threads over the last two or three years. You can find cyberia-l through http://www.findlaw.com/. Also, there are some very good collections of Internet cases and FAQs on the web. I am only going to mention a couple: the list at http://www.perkinscoie.com/, the FAQs at http://patents.com. A search on one of the major search engines under copyright and fair use will no doubt disclose others.

Good luck with your research and paper.

-- 
Carol Ruth Shepherd
Arborlaw Associates PLLC
Ann Arbor, Michigan USA
+1 734 668 4646 tel   +1 734 663 9361 fax
business, technology, entertainment and new media law
shepherd[_at_]arborlaw.com