On 10/15/98, Red Bradley <red.bradley[_at_]sru.edu> wrote:
>
> we are debating the use of photographic images in a student newspaper
> that were downloaded from the web. it was done without the
> photographers permission or knowledge -- it was an article on a
> recent are opening featuring the photographer.
>
> it appears, furthermore, that the site was a private site not public -
> although the photographer shared the information with the reporter he
> did tell her that the site was private. a copyright notice is placed
> at the bottom of the web site.
I'm going to have to make some assumptions. First, the photos you downloaded were taken by the photographer. Second, they were not intended to be downloaded (many photos on website are available for download). Third, the photographer gave you the URL of this "private" website you mention.
Assuming all that, downloading (copying) the photos is an infringement, further assuming they are copyrightable, probably a safe assumption. There was no consent to download them. That leaves you only with a fair use defense against infringement. You don't say how many of these photos you want to use, or how that compares to the size of the article, but I think a reasonably good case can be made for fair use.
If the student newspaper is nonprofit, that helps. Also, you are using the photos as a sort of commentary that goes along with the article. That helps.
The nature of the copyrighted work weighs against you as it is expressive, not factual.
The amount you took was all (assuming that each photo is an independent) work. That weighs against you.
The effect on the market, though, should either be negligible, none, or even a postitive effect, as it helps bring people to the gallery where they can buy the photos. The reproduction of photos in a newspaper is generally of such poor quality that no one would think that the photo in the paper is a good replacement for the real thing or a good (and authorized) reproduction.
Assuming (more assumptions) that you didn't take too many photos (maybe one or two?), the use seems fair to me. However, as always, fair use is intensely factual and mushy. You don't provide enough facts, and who knows about the mush?
All that having been said, even though there are people on the list who rail against asking, why don't you ask the photographer's permission? You appear to have a pre-existing relationship with him. What's the problem?
BTW, I had never heard of Slippery Rock University. I'm afraid, though, that the law has ruined me. All I could think of is why don't you change your name to Slippery Slope University? Sigh.
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