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

[Douglas Eyman]

I concur with Don Holeman's suggestions -- as the editor of an online 
academic journal, I would certainly argue that use of the images for 
purposes of critique or rhetorical effect in a scholarly work constitutes 
fair use, and in fact would prefer that authors work under that assumption 
and *not* make an effort to secure copyright permissions in those cases 
(because the query weakens the fair use exception, and because most, if not 
all, commercial copyright owners will say "no" regardless of fair use).

But this particular question relates to the issue of orphan works -- what if 
you can't find the copyright owner? There is a project currently underway to 
suggest alternatives to current copyright law with regard to orphan works 
(which, fair use aside, basically leaves you SOL); you can find out more 
about the problem and proposed solution at http://eldred.cc/

In a similar vein, if you are the originator of a work that is hosted on the 
Internet (and might, therefore, be a candidate for orphan status at some 
time in the future, as sites migrate or hosts change ownership, etc.), I 
strongly recommend licensing your work under a creative commons license 
(http://creativecommons.org) --if you are able to do so, which may not be 
the case if you are doing work for hire for instance -- so that future 
scholars and researchers won't have to make the decision to not use (or 
cite) your work in the future.

Douglas Eyman, co-Editor
Kairos: A Journal of Rhetoric, Technology, and Pedagogy
http://english.ttu.edu/kairos/

----- Original Message ----- 
From: "Cox" <dholeman1 at cox.net>
To: <air-l at listserv.aoir.org>
Sent: Wednesday, April 27, 2005 4:27 AM
Subject: RE: [Air-l] Permissions for web images that no longer exist (APPLY 
IT)


> 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
> 860.424.2599
> 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.
> thanks!
> Mia
>
> Mia Consalvo, Ph.D.
> Kohei Miura Visiting Professor
> Department of Communication, College of Humanities
> Chubu University
> Japan
>
> Permanent address:
> Ohio University
> School of Telecommunications
> Athens, Ohio 45701
> USA
>
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