My site hotnessrater.com allows users to upload pictures. When they do so, they agree that they have the rights to share the file. If I later get contacted by someone else and they show me they are the rights holder, I will definitely take the picture down. In this sense I think I'm kind of covered by putting the responsibility on the person who uploads. That's not really the question though (although I would be interested to hear opinions on that) What I really want to know is this: Each picture that gets uploaded, gets voted on and from that, I calculate a hotness rating for that photo. So although it isn't very verbose, the site is rating and ranking each photo. Is this enough to qualify under fair use as an editorial, since we are in effect giving an opinion on each picture?
I'm not a lawyer but I would think that the answer is no. The good news is that as long as you comply with the DMCA, you won't get into any trouble over photos uploaded by your users. That means registering a DMCA agent, publishing that contact info on your site, and removing any photos that you receive takedown notices for.
No, it is not fair use. If the picture's owner asserts copyright protections, you cannot use it without permission. You cannot use it at all in any way, shape, or form.
Well I know the bold part is simply not true. You can use other peoples work, at least in a limited sense, under fair use, given you are making a commentary, criticism or parody of their work. I have also read that somewhere that pictures are slightly different in the sense that you can't really offer up part of a work for criticism. So yes, if I was just posting pictures, it definitely wouldn't be under fair use, but since I rank and rate them, that might be considered a criticism or commentary on the work. It's an argument that I think would probably have to be solved in court. I have not been able to find any rulings that were on a case like this. I was kind of hoping someone knew of one. I'm not sure it is all that cut and dry and it could be a grey area.
As omgcats said this would not be considered fair use using existing cases as a guide. However, as they stated you could pretty much go ahead with your idea and rely on the DMCA to protect you from your users uploading images they do not own. As long as you register an agent and comply with the terms of the DMCA. However, if you are uploading the images yourself it will not provide you any protection.
No, you cannot use other people's work at all. You can, for instance, create your own image to parody an existing image. But you cannot use an existing image and modify it into something else. That's referred to as a "derivative work". You can use trademarked brand names in a parody. You can use limited amounts of copyrighted text for the purposes of discussion, but you cannot use much. That is correct that you cannot use "part" of a picture for discussion. That's why you cannot use the whole thing either. No, it will not. That's copyright infringement. You cannot use somebody else's images and claim fair use because you are rating them or commenting on them. That isn't a fair use. And you would lose. No, it is not a grey area. A guy by the name of Shepard Fairey allegedly took a copyrighted picture of Barack Obama from the Associated Press and created an "iconic" poster from it (a derivative work). Posters and t-shirts were created, and sold, and the Associated Press filed a lawsuit which was later settled out of court alleging copyright infringement. Fairey apparently made a fortune selling those "Hope" t-shirts and posters. The judge presiding over the case urged him to settle out of court for a reason. Which he did. Why?
Google and other search engines use others images all the time and it is covered under fair use. The courts have been quite clear that search engines can use thumbnails of images under fair use because the search was transformative and added value. It's not a derivative work. Search engines use the whole image. Do you have an example of someone who lost a case of posting a full image while making a commentary about it. That's a completely different scenario. He was using the image without making a commentary at all. Section 107 of the Copyright Act states: "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work." The example you put up is very different. He was selling the images. He wasn't making a commentary on them. Since my site makes commentary on them, is that not a transformative use and not a derivative? I'm not necessarily saying that you guys are wrong and I do appreciate your input, I am asking for information here because I'm not sure. But when someone says that you can't use anyone's images under any circumstances, that makes me suspect of their understanding of fair use since there are obviously some cases where you can use images. I was kind of hoping for something a little more substantial, like a court ruling where the circumstances were similar. This is why I think it is a more grey area than people are considering: There are 4 factors that are taken into consideration: Purpose and Character: Is the work transformative or derivative? This is often the most important factor. My argument would be that ranking and rating the images is a transformative work and not a derivative work. It is not simply using the image, it is adding to the image and creating a ranking system of its own. This requires use of the full images so people can make judgments. Nature of the Copied work: I'm still trying to wrap my head around what this actually means... Amount and Substantiality: I might be on shaking ground on this one although, "the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use" - In order to appropriately judge the photos, a thumbnail or partial image isn't adequate. The full image is necessary, and the images are usually smaller than the original. So I think this could go either way Effect Upon Works Value: Does this site really negatively affect the originals? Or does it help promote them? Of the four factors the first one is the most important from what I have read and probably my strongest argument. I don't think just saying, "If it's not yours you can't use it" is accurate at all. Basically I was wondering if anyone had any example court cases that dealt with this scenario a little more closely... it might be something only an attorney would know
The definition of fair use is different for every instance, so try and remember this before you make an assumption.