Forgotten in its old age

by Aditya

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I found an animal photo I'd like to use as an avatar. I only want to use the head of the animal and would retouch it a bit.

Is this considered as fair use?

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See this "U.S. Copyright Office: Fair Use", I think you'll find your answer in the second paragraph. –  Omne Sep 26 '12 at 11:02
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What country are you in? It's impossible to answer your question without more information. –  Håkon K. Olafsen Sep 26 '12 at 13:02
    
What animal is it? Maybe I have a picture I don't mind letting you use. –  Olin Lathrop Sep 26 '12 at 23:25
    
Olin said what I meant to :-). He and I and others here between us may well be able to source a photo - although there are probably many public domain photos available. (Meerkat, Ostrich, tiger, bear, ... ? :-) ) –  Russell McMahon Sep 26 '12 at 23:34

3 Answers 3

Legally, it may or may not — you'd probably have to have a court case to determine your particulars. (The law simply isn't clear-cut.) Strictly speaking, you'd probably make de minimis arguments (I just used a small part; it wasn't really important; there was no commercial impact; it's only used in a small way) rather than fair use. But the court cases for that are (perhaps somewhat surprisingly) very strong on the side of the copyright holder.

Practically speaking, the odds of a court case happening are very small.

But why not find an image of the same animal type in the wide body of public domain and Creative Commons photographs? Then, you're definitely on the good side.

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I think you're generally correct. The usage may infringe, but the practical likelihood of that meaning anything is very likely not that much. Worse case I could see would be a cease and desist given the intended purpose, but more likely it would never come to that. –  John Cavan Sep 26 '12 at 16:56

The most famous example of "Fair use" and image manipulation might be Barack Obama's "Hope" poster, designed by artist Shepard Fairey. When it was discovered that the poster had been based on a photograph by freelancer Mannie Garcia, and that the Associated Press held the copyright to that photo, the AP sought compensation and a multi-year legal battle began. In the end, Fairey pled guilty to charges related to this case and paid a fine, though I'm not sure the AP ever got any compensation.

In your case, you're probably unlikely to come under that sort of scrutiny if you're not earning money for your work and you're less famous than Barack Obama, but that's not going to really change the legal standing of your position. It's always best not to trust the legal advice of a bunch of random strangers on the Internet (go see a lawyer if you want real legal advice), but I think the practical advice given by others is pretty wise: just find a different image that's in the public domain.

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Then the paradox kick in: if a random stranger on the internet advises you not to trust random strangers on the internet, why should you follow said random stranger advice on seeking for a lawyer? Ah, Epimenides, where art thou? –  Francesco Sep 26 '12 at 14:33
    
also: +1 from me. –  Francesco Sep 26 '12 at 14:34
    
Yup. And, if you really want to split hairs, even lawyers are wrong sometimes. A well-informed consumer is a good consumer. –  D. Lambert Sep 26 '12 at 16:39
    
Well almost by definition one lawyer will be proved (more) wrong than the other.... –  Francesco Sep 26 '12 at 20:43
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Yeah, I guess so. Forget the lawyer, then -- stick with the random strangers; you'll never prove them wrong. ;-) –  D. Lambert Sep 26 '12 at 21:30

Personal opinion. IANAL.

I cannot see any reason why this would be "fair use".
A lawyer may be able to argue that it was, but it seems clear to me as a layman with no legals qualifications that this comes nowhere near any of the tests of fair use.

You want to use somebody else's work.
You want to use it for a personal purpose.
You want to create a derivative work.

If the work has a published licence that allows derivatives you may be allowed to use it. But that's not fair use. A published licence may stipulate share alike, or not, and attribution, or not. And more. But that is still not fair use.

From this US Copyright Office site that Omne mentioned you can get the advice below. I quote it here under fair use and it may be allowed under other terms as well.


Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as

  • criticism,

  • comment,

  • news reporting,

  • teaching,

  • scholarship,

  • and research.

Without further information, constructing an Avatar does not seem to come close to any of these.

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And no list is complete - in fact, if someone used an image for news you possibly have a good chance going after them for a license fee. From what I see of fair use, the general accepted view seems to be that most not-intended for profit, noncommercial personal use is fair use. (And I know that gets dodgy when you start printing a screenshot for your home wall.) But short of consulting some court cases, it would be hard to say for definite. –  DetlevCM Sep 26 '12 at 17:00

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