The Fair Use Act is frequently sited by PSP hobbyists that do not believe they have to pay to use the artwork sold by licensing companies. Many PSPers chose to post this statement under the false belief that this protects them from copyright infringement if they have not purchased a license for artwork usage:
"In accordance with
Title 17 U.S.C.Section 107 any copyrighted images in this message are
Distributed under Fair Use without profit or payment to those who have expressed
A prior interest in receiving the included information and are for non-profit
Researcheducation or criticism purposes only."
There is also a letter circulating stating that the US Copyright Office has said that the usage of tubes by signature taggers falls under the "Fair Use Act". I am afraid that this is just not true. (I know I have posted the following correspondence in the forum already but I feel the need to include it here again.)
The information in the circulating letter is only partially correct. There is a "Fair Use Act" however there are four criteria that need to be met in order for usage of tubes to be qualified as "fair". Making signature tags does not meet all four criteria, it only meets one and therefore does not constitute Fair Use. I am sure the person who wrote the letter spoke with the US Copyright Office and gave them information about signature tags however we do not know what exactly was explained to them about the specific usage of tubes. The US Copyright Office can only advise someone based on whatever information is given to them. They may not have an accurate understanding of exactly what we do with tubes and how we do it. It would be like a full grown adult walking up to a police officer and asking if they are ok to drive a car. The police officer could say well sure you are, you are an adult with no visible handicaps so yes, I can't see why you wouldn't be able to drive a car. But if that person failed to mention that they did not have a valid drivers license then the information given to them by an officer of the law would have been incorrect. The same thing has happened here I believe. The US Copyright Office was probably not given accurate information and then gave an incorrect answer.
CDO retains a copyright attorney that knows exactly what we do and how we do it and I am sure that if our business was not legitimate or if our tubes fell under fair use our attorney would have advised us of such a thing and we would no longer be in business.
Below is a detailed explanation of Fair Use:
In order for "usage" of any copyright material to constitute Fair Use a MAJORITY of the following 4 criteria MUST be met meaning not just one or two but at least three must qualify.
FAIR USE ACT: 4 Criteria
1. What is the character of the use? - if your answer is for nonprofit, personal, educational, research or criticism then the usage is in favor of fair use but if your answer is commercial use then the usage favors required permission.
- If your answer is for educational / research / criticism use please know that you MUST be able to show that you are using the work in a "class room" or teaching environment such as you would use a text book, editorial manner such as an article about an artist, or that you are researching the artists work in some manner such as for writing a report and you MUST show that you are not freely giving the work out to the general public.
For example: An image could be used in a class on how to tube an image. Please keep in mind that you would have to show that you are an actual school / educational institution or licensed professional with credentials to teach. BUT you CAN NOT then freely share that image with the students that took your class. You would need to direct the students to where they could legally purchase that image and educate them on how to properly credit that image for usage.
A DETERMINATION OF FAIR USE CAN NOT BE MADE BY THIS ONE CRITERIA ONLY - the other three questions must be answered and all four analyzed together as a whole.
NOTE: Taggers frequently site FAIR USE under this one criteria only as educational or non-profit use and it is NOT enough to constitute FAIR USE. Please read on.
2. What is the nature of the work to be used?
- if your answer is for presenting of a fact or facts then this favors Fair Use. Example: You take an artists image exactly as they had originally produced it, no tubes, no elements or embellishments added and you watermark across it "This artwork is ©XXX artist - Pay for Use ONLY!" and you display it in your group as an example of who that artist is and what work they do then this would constitute a FACT and it is published exactly how the artist created it.
- If your answer is Imaginative or unpublished use meaning you have tubed an image and are sharing it or just passing around and sharing at tag you made, then this favors requiring permission or in other words, DOES NOT favor Fair Use. Example: You create a tag using an artists tube by adding elements, text, etc... then this constitutes an "imaginative" work. You created the tag / tube but you used the artists work in your creation. This type of usage does not favor Fair Use.
3. How much of the work will you use? More clearly defined - How much of the image / tube will you use in your creation?
- If your answer is a small amount (20% or less is generally safe) then this favors Fair Use. Example: taking a head or body part from one of our images and using it at a very small size such as an avatar would constitute a "small amount". An entire image, close ups or body parts bigger than an avatar do not constitute a small amount.
- If your answer is more than a small amount (20% or more) then this favors required permission. Again... if you are using an entire image or tube or close ups lager than the size used for an avatar then it is not considered a small amount and does not constitute Fair Use.
So far 2 out of the 3 criteria have been met in favor of requiring permission and or legal purchased licensing in order to use artwork in signature tags, web sets, My Space comments, stats et al.
And finally No. 4
4. What effect would it have on the market for the original or for permissions?
- If your answer is that the original piece is out of print or unavailable, that there is no current market for permission or usage or the copyright owner is unidentifiable then favor falls to Fair Use.
- If your answer is that your usage competes with or takes away from sales or avoids payments for permission or royalties in an established permissions or royalties market then favor falls towards required permission. Example: If you avoid paying for usage of images / tubes by freely sharing and using them in this current established market of licensing companies then you are clearly taking away an artists rights to make a living.
After consideration of all 4 criteria it is clear to see that the PSP / graphics hobbyists community only meets a small part of the first criteria out of the entire four. The way that taggers / graphic hobbyists use the artist's work fails to meet enough criteria to be used without licensing or permission.
In case further explanation is needed:
The art work you are using to create tags is being used for your imaginative and unpublished works. More than 20% of the work is being used in your creations at a size greater than an avatar AND usage of this work without properly obtaining a license takes away from royalties and permissions in an ESTABLISHED permissions / royalties based market. Even before licensing companies came into being this "permission based" market had already established itself due to taggers formally writing to artists and asking if they could use their work.
Please feel free to contact a copyright attorney or the US Copyright Office to validate this information but please remember to be honest and very detailed when informing any party of how you use the artwork. You WILL NOT be properly informed if you do not give accurate information about what you are doing.