[Air-l] Permissions for web images that no longer exist (APPLY IT)

Cox dholeman1 at cox.net
Wed Apr 27 01:27:40 PDT 2005

Interesting question, the answer probably is - it depends. 

The law is pretty clear that most uses need permission. The exception that
matters is fair use. 

"Four conditions govern fair use:

The purpose and character of the use;
The nature of the copyrighted work;
The amount and substantiality of the portion used; and
The effect of the use upon the potential market for or value of the
copyrighted work."

(Bowles, Dorothy (2004). Intellectual Property. In Hopkins, W. (Ed.)
Communication and the Law, p. 129. Northport, Alabama: Vision Press.)

Bowles indicates that fair use is more likely to protect:

 - non-profit, educational uses subject to whether the use serves the public
interest of stimulating creativity; whether it does more than repackage or
rephrase the original; whether it adds 'transformative value'.

 - copying from out-of-print works than ones available for purchase, and
from more factual works than from more fictional ones.

 - reproducing less rather than more of a work, subject to the
transformative nature of the secondary work such as the extent to which it
analyzed as a work of criticism.

 - whether it affects the potential market for, or value of, the original
work (this is the most important factor of the four).

Unfortunately, there are no clear cut guides for these criteria, and the
situation regarding images is especially unclear because it's difficult to
excerpt an image.

My guess is that use in a journal that is strictly academic would be fair
use, but use in a book would be less protected depending on the nature of
the book such as whether it is an academic treatise or not.

None of this covers the question of whether the content of the image might
itself be subject to copyright or trademark protection, such as if it
contained an image of a logo, a person, or a performance; or whether the
content might affect the privacy of an individual that it portrays, or be
libelous in some fashion. In addition, it is likely a dangerous assumption
that an image found on a website is the work of the owner of that website. 

Personally, I'd hesitate to use such an image especially without making a
substantive effort to locate the creator to seek permission. You may have
already done a whois search to identify the owner of the website but if not
this might give an email address different from the one you already have. 

Seems odd that this question would pop up while I'm studying for my media
law exam tomorrow :)

All the Best,
Don Holeman

Master's Candidate
New Media
Newhouse School of Public Communications
Syracuse University
djholema at syr.edu
dholeman at twcny.rr.com

-----Original Message-----
From: air-l-aoir.org-bounces at listserv.aoir.org
[mailto:air-l-aoir.org-bounces at listserv.aoir.org] On Behalf Of Mia Consalvo
Sent: Wednesday, April 27, 2005 2:03 AM
To: air-l at aoir.org
Subject: [Air-l] Permissions for web images that no longer exist

Hi all,

I've run up against a problem that has my publisher stumped as well. If 
you're publishing a book or journal article and want to use pictures 
from a Web site, and you have the pictures but the site is no longer in 
existence, do you need permission? How would you handle this?

And also, what is the site still exists, but all emails to the authors 
of the site bounce?

Any help or pointers of where to look would be greatly appreciated.

Mia Consalvo, Ph.D.
Kohei Miura Visiting Professor
Department of Communication, College of Humanities
Chubu University

Permanent address:
Ohio University
School of Telecommunications
Athens, Ohio 45701

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