How can the fair use doctrine in U.S. copyright law be used for academic research? We recently and successfully advised an Australian academic on this subject.
Our client had prepared a major, lengthy and heavily illustrated scholarly article for publication in a U.S. academic journal.
It contained 50 or more old and recent graphic maps, logos and various iconography associated with brands used by commercial, government and academic organisations in Australia.
The U.S. journal asked our client to obtain permission for reproduction of those images to avoid any potential copyright infringement claim against the author and publisher. In a worst case scenario in such matters a court order can be obtained requiring a print journal to be pulped and an electronic journal to take an offending article offline.
In our case many of the 50 or more images raised four issues:
the owner or rights holders was unknown or obscure;
the person or organisation with authority to give a permission was unknown;
obtaining permission would involve weeks of work, including calls and emails; and
removal of images, when permissions could not be obtained, would hugely degrade the value of the article and require article re-writing.
Happily for our client, our advice was that no permissions were needed and the advice was accepted by the in-house counsel of the U.S. company that published the journal.
Here’s the advice that proved to be convincing.
Dear [ ]
On your instructions I have reviewed the background email correspondence and your draft article containing the full collection of images to be published in the article by a scholarly journal published under United States copyright law.
I have formed the view expressed below that use made by you of each image is a fair use for the purposes of U.S. copyright law.
1. Is there copyright in the images?
Among the images the ones which reproduce the map of [NAME OF COUNTRY] and make no substantial variation to that map are not likely to be subject to copyright as they lack the originality requirement for a work to be subject to copyright.
Also some of the turn of the 19th century images are likely to be out of copyright due to expiration of any copyright term applicable to them under copyright law.
2. Images affected by fair use doctrine
The remaining images which are original, and in copyright, may be used without permission if the exception of the U.S. copyright law fair use doctrine can apply to them.
3. Images are not pure illustration
The images referred to in paragraph 2 above are thematically integrated with the scholarly text you have written, they are not a pure illustration for the paper, for example a book’s cover illustration (reproducing a copyright photo or painting).
In this context it is relevant to note that your article:
collectively contains a collection of images;
in parts features a sub-collection of images;
in all cases each image is reproduced in avery small size; and
in all cases each image is reproduced in a very low resolution.
4. Application of U.S. fair use doctrine elements
As regards the U.S. fair use copyright doctrine, below is analysis of relevant considerations.
The purpose of the use of the images in the article is purely for a research publication. This is evidenced by the images being:
collectively, a collection of images in the article, and
in parts being, sub-collections of images that resemble each other in some way.
It is anticipated that publication will encourage scholarly discussion of the images in the context of the themes raised in the text.
When read in the context of the article, the text of the article introduces new insights relevant to the images and their meaning, thus the text provides commentary and analysis of the images and new insights regarding reading of them.
Turning to the nature of the images as individual works, many of them are logos or brand iconography. Courts considering copyright infringement claims have for decades not usually attributed a high level of monopoly right to logos and brand iconography when the context of the use is in a scholarly, non-commercial text publication. Relevant here is the fact that these publications and the articles in them are typically not making trade mark or other commercial use of the logos or iconography. The position may be very different if the use in issue was not a scholarly, non-commercial text article, eg a commercial film or a website marketing logos for design with no accompanying criticism or review.
Finally, as regards any impact on the potential market, I know of no market for any of the image for use in other copyright works, eg books, films and TV documentaries. There is no market for such logos and brand iconography for use in other copyright works, such as the present journal article.
As to the transformative consideration under the U.S. fair dealing doctrine, none of the images are used in the same context in which they first appeared. Each use of an image in the article is not a substitute for use of that image in its original source work (eg as a brand on a website banner or as a brand on a letterhead or other signage). Further, since the article features a considerable collection of such images, this further substantiates the view that use of each individual image is not made as a substitute for that individual images original use.