Fair use or infringement? Don’t assume!

MELVILLE, N.Y., May 28, 2009 – In the age of the Wild Wild Web, when photos and other work are lifted without permission with regularity, where do your rights lie?

According to a panel hosted by the Press Club of Long Island and held at Newsday, copyright laws offer guidance, but much depends on a case-by-case basis.

The panel, inspired by the controversial use of a Barack Obama photo by the Associated Press that was downloaded from the Web and later used as the basis for artwork now hung at the National Portrait Gallery, dissected many of the copyright issues affecting journalists nowadays.

Questions discussed in “Fair Use or Infringement” included such topics as when material from the Internet, used without permission from the rights holders, is considered acceptable to be used by the general public or by other media outlets.

Oswaldo Jimenez

Oswaldo Jimenez

Fair use is generally based around the “four-factor” balancing test: “purpose and character, nature of the copied work, amount and substantiality and effect upon work’s value,” said Newsday Photo Editor Oswaldo Jimenez, who moderated the panel. Yet with the unlimited access afforded by the Internet, is that now enough?

Included on the panel were photographer Timothy Fadek, media lawyer David Bralow and Hofstra Law School Professor Leon Friedman.

Fadek offered an example of what can happen if an image is used without permission.

“I had an image of mine of the Apollo Theater and the New York Times used the image.” The Times offered him $500 after the fact but after a suit he was paid $20,000 for the use of the image.

While there is some freedom, there are also boundaries. “Thumbnails are okay but for a larger image all you can do is reference it,” explained Friedman. “In the last few years people are doing things without any guidance. You scratch your head every time one of these new cases happens.”

“The day that something happens is fair use, but later you can be sued,” continued Bralow. “The question of fair use depends in part was there a great need to do it at the time you did it.”

Timothy Fadek

Timothy Fadek

Bralow added, “A lot of it depends on what the image is, what the blog is, and how much of the image you are going to use.”

“When you think about it, fair use can be very subjective,” Jimenez concluded.

Thought-provoking topics such as this are planned for the months ahead by PCLI, the local professional chapter of the Society of Professional Journalists. In addition to monthly programs and mixers, membership includes an annual PCLI Media Awards dinner, Holiday Party, a Media Guide listing all Long Island media, and more.

Join us next week for the Press Club’s Media Awards Dinner, June 4, at the Woodbury Country Club. Visit www.pcli.org to reserve a seat.

The Society of Professional Journalists is the nation’s largest and most broad-based journalism organization with 60 pro chapters and 250 student chapters totaling 8,700 members nationwide.

The mission of PCLI is to protect and advocate for First Amendment rights and to educate its members through programs such as these. For more information and to keep abreast of future programs, visit www.pcli.org or e-mail chapter president John C. O’Connell at John.PCLI@mac.com.

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