On 11/14/98, Jason R. Berne <jberne[_at_]stlnet.com> wrote:
>
> A friend is the moderator of a literary magazine put out three times
> a year by private high school. The school does charge a nominal fee
> for each copy ($0.25, I think), but does not actively distribute the
> magazine outside the school. I believe they print several hundred
> copies One student wants to use a copyrighted photo that appeared
> locally (and probably elsewhere) in a commercial newspaper. The
> photo is to accompany an original poem of the student.
>
> Would such use fall under "fair use"? Would it matter if the school
> did not charge for that issue of the magazine?
What is the relationship between the poem and the photo? Whether a use is fair depends on the context. Is the poem commenting on the photo, making fun of it? Despite the fact that this is not a widely circulated periodical, it is also not personal use. It is an apparent commercial use, even if it's arguably small potatoes. The magazine would be using the entire work, and there would be some minor damage to the copyright owner's market.
> They also have an online edition available through the school's web
> site. Would this affect the analysis?
Yes as the dissemination is wider and the impact on the market greater.
> Lastly, if the school's use (either in print or online) would be deemed
> a copyright infringement, what would be the likely remedy?
If sued, damages, either actual damages or, if the work was properly registered before the infringement, statutory damages and attorney's fees.
Why doesn't someone ask permission?
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