Q: We are doing a feature this week on the history of Rudolph the Red Nosed Reindeer. (actually pretty interesting… another marketing ploy by corporate giant) Anyway, I am thought I might scan in the cover of a little Golden Book about the flying mammal and use it as my artwork for the story. The book is copyright 1958 and has been out of print for years. Am I trudging on infringement issues?
A: First, it’s good that you stop to ask. Often, news staffs scan and use without even giving a second thought to copyright issues, simply presuming that if it can be found, then it is fair use. This is not always the case, of course, and that’s when the Copyright Scrooges can come calling.
Chances are that the image is not in the public domain. Even though it was published in 1958, if long as Little Golden Books renewed the copyright after its first term would’ve expired in 1986, the copyright would extend to 95 years after the original publication date. That’s the rule for works published between 1920 and 1963; today, copyright extends to 70 years after the death of the author. (see a full list of copyright duration here: http://copyright.cornell.edu/resources/publicdomain.cfm)
In this instance, however, I think printing the Rudolph cover would qualify as fair use. Fair use is the chief exception under U.S. copyright law, which calls for penalties including $750 minimum and up to $150,000 in damages per infringing use. Worse than a lump of coal, indeed.
To qualify for fair use consideration, the use must fall into one of the following categories: criticism, comment, news reporting, teaching, scholarship and research. Because you would be using the Rudolph image for news reporting purposes, you are at least eligible for the fair use exception. However, this alone does not mean the use is fair.
Courts apply a four-part test to gauge whether the use is fair. No one part of the test is supposed to be given any greater weight than the other; rather, courts apply the test on a case-by-case basis and provide an overall ruling based on the facts and circumstances. The test includes the following: (1) purpose of the secondary use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion taken and the secondary use, and (4) effect on market value of the original.
In the case of the Rudolph cover, the test would apply as follows:
- Purpose of the secondary use: News uses are for profit, which favors the copyright holder. However, the fact that the original is out of print helps the secondary user because you are making it available to a wider audience.
- Nature of the copyright work: Rudolph is without a doubt fictional and fanciful, which is more creative than historical or factual works. This favors the original copyright holder.
- Amount and substantiality: This kind of depends on how the copyright was registered. Was it done as a whole, or was the cover image registered separately? Most likely, it was registered as a whole, meaning you’re using just one image (albeit the most important one) from dozens in the book. It’s hard to use images fairly without “transforming” them somehow – using them in a photo illustration, for example – because it usually requires taking the whole image. Using the photo in a de minimis way – as a small image accompanying a longer story, with other images from other sources as well – would help the news reporting use even more. This factor also slightly favors the copyright holder.
- Effect on market value: Essentially zero, which favors the secondary use. It’s not plausible to believe that people would substitute the newsprint image for the original, thus undercutting sales of the book.
Though courts are not supposed to favor any one factor, they often do focus on amount and substantiality and effect on the market. Here, with no negative market effects, and with only one image from the book taken, these factors seem to favor the secondary use. The fact that the book is out of print helps as well.
Thus, I think this use would qualify as fair. To be safe, however, I encourage attributing to the original work – under the image, I suggest listing the name of the artist, the title of the book, the publisher and the date. Such acts of good faith – you’re giving credit to the original artist and publisher to the audience, rather than hiding them – tend to be appreciated by the courts. Think of it as a way of staying on the “nice” list.
For more information on copyright, go to www.copyright.gov, which is full of resources and FAQs for the public.