[Air-L] an ethical question or two

Dan L. Burk dburk at uci.edu
Mon Aug 4 15:00:03 PDT 2014


Maybe.  For some purposes, not necessarily for others.

It is probably non-profit.  Which is not necessarily the same as
non-commercial (as my accountant friends like to say, non-profit doesn't
mean you can't run a surplus).  If it is like most journals, it may be
running a deficit and/or requiring support from other sources of revenue. 
So money is changing hands, but there may not be any left over.

There are at least a couple of places where this is relevant in the fair
use analysis: first, the purpose for which you are using the work.  You
are better off there if your purpose is something other than profit, so a
showing of production at or below cost is useful.  The factor is more
likely to favor you if the purpose seems to be scholarship rather than
revenue.

The second is in factor four, the extent to which you are displacing the
rights holder's market.  There it doesn't really matter if you are making
money or losing money, or giving the work away for free.  The question is
whether the owner is losing, or potentially losing money.

DLB


> Is publication in an academic journal "non-commercial"?
>
> Charles Balch PhD
> Faculty, Department of Business & Administration
> Northern Arizona University - Yuma
>
> Office/cell: (928) 317-6455 / 287-3906
> Skype: NAUCharlie
> Google+: cvb23 at nau.edu
>    
>
> -----Original Message-----
> From: Air-L [mailto:air-l-bounces at listserv.aoir.org] On Behalf Of Dan L.
> Burk
> Sent: Monday, August 04, 2014 2:32 PM
> To: Charles Ess
> Cc: Air list
> Subject: Re: [Air-L] an ethical question or two
>
> Dear Charles:
>
> You are asking two (at least two) different questions.
>
> The first is about the right of publicity and/or privacy of the
> politicians.
> In the jurisdictions with which I am familiar, they have very little: as
> you
> have pointed out, they are public figures, acting in the public sphere,
> and
> in a democratic society there is a much stronger interest in robust
> discussion and examination of their actions than there is in maintaining a
> personal right to control their images.
>
> Stated differently, they chose to place themselves in elected office, so
> autonomously chose to place themselves under public scrutiny.  That will
> tend to negate their personal interest in controlling the images.
>
> I would hope that this analysis would play out similarly in most
> democratic
> jurisdictions, but YMMV.
>
> The second question, regarding copyright, is much trickier.  Copyright
> does
> not lie with the subject of the photo, but with the photographer (unless
> of
> course it is a selfie).  You indicated that the photos were drawn from
> Facebook and Twitter, which suggests that there may be some implied
> permission for public use, but this is only a supposition and to know you
> would need to check.
>
> Several people have now suggested that the use would be fair.  First, fair
> use exists only in a handful of jurisdictions (the U.S., and more recently
> Israel, and to some extent Korea and Taiwan).  Some other jurisdictions
> will
> have exemptions (such as "fair dealing" which is NOT fair use, although in
> Canada it is creeping closer) that might allow the use.  The EU is a
> patchwork, with exemptions varying from country to country.
>
> However you should not assume that non-commercial use of a photo of a
> politician is necessarily fair, even in jurisdictions that recognize the
> defense (witness, for example, the famous and protracted litigation
> between
> the Associated Press and Shepard Fairey for unauthorized use of a photo of
> Barak Obama that formed the basis for Fairey's "Hope" poster -- summarized
> here http://en.wikipedia.org/wiki/Barack_Obama_%22Hope%22_poster .
> Admittedly, Fairey did not help his case any by committing
> perjury/spoliation).
>
> Best, DLB
>
>> Dear AoIRists,
>>
>> I am editing a piece for a forthcoming journal issue; it includes two
>> screenshots of tweets from Members of the European Parliament (MEPs)
>> and a screenshot of the Facebook page of a politician running for
>> office in 2014, including their pictures and names.
>> These are public figures very intentionally engaged in a public
>> activity in a medium that functions as a de facto public sphere (or at
>> least an approximation thereof).
>> There is nothing in the screenshots that could be construed as
>> potentially embarrassing, much less libelous, much less potentially
>> warranting protection as private.
>>
>>
>> I have gained the impression over the past few years that both in
>> practice and in emerging guidelines codes, and law (specifically,
>> based on what [little] I know of law surrounding freedom of speech and
>> privacy issues in journalism in the U.S., the E.U., and Scandinavia),
>> it is permissible to publish these without permission from the
>> politicians in question.
>>
>> At most, if these were tweets and FB pages posted by U.S. politicians
>> aimed at U.S. voters, we would have to note that the tweets and
>> pictures were de facto copyright by their authors; to my knowledge,
>> however, there is no parallel requirement on this side of the pond.
>>
>> Of course, it's usually when I think I know a good response to an
>> ethical dilemma that I turn out to be missing something crucial - so:
>> am I missing something crucial, or are we indeed on reasonably safe
>> ground to publish the screenshots as is, no permissions required, no
>> copyright notices included?
>>
>> Many thanks in advance,
>> - charles ess
>>
>> Professor in Media Studies
>> Department of Media and Communication
>> University of Oslo
>> P.O. Box 1093 Blindern
>> NO-0317
>> Oslo Norway
>> email: charles.ess at media.uio.no
>>
>>
>>
>>
>>
>>
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>
>
> --
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> 4500 Berkeley Place
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-- 
School of Law
University of California, Irvine
4500 Berkeley Place
Irvine, CA  92697-8000
Voice: (949) 824-9325
Fax: (949)824-7336
bits: dburk at uci.edu




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