A faculty member wrote the draft of an article that they were submitting for publication. They found an image on the internet that represented the use of a piece of equipment well, but they couldn’t figure out who owned the image. See image below.
After searching for other uses of this image, a copyright specialist determined that no one source could clearly be identified as the original author. It seemed possible the image might have been scanned from a vendor’s brochure, but it was not clear if this was the case. One option would have been to contact the equipment vendor, but there were too many instances of the image being used and no certainty who was the vendor.
Depending on how the faculty member intended to use the presentation, e.g., an educational seminar, they might have been able to justify using the image under the Fair Use provision of copyright law, but without an author’s name they would have to claim an unknown authorship, which might have looked unprofessional. Use of the image in a journal article would be harder to justify because a journal is a commercial publication.
An analysis of the Four Factors of Fair Use disfavors use of this image for a journal article. A copyright specialist recommended finding another image.
The above image applies to both the preceding and following case studies.
Copying an Image for a Website Case Study
The Four Factors of Fair Use are the basis for making this determination. While reading the following analysis, think about Fair Use as a balance scale with one pan called Favoring and the other Disfavoring.
Factor 1: The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
Arcadia University is a non-profit corporation whose mission is to educate. Non-profit educational purposes are statutorily protected by copyright law. In addition, this case study is part of an educational effort under that umbrella. Put a weight on the Favoring side of the Fair Use balance scale. If the intended use was to illustrate an article in a for-profit journal, that weight would be much smaller or might have to go in the Disfavoring pan.
Factor 2: Nature of the work
The consideration here is whether the work is more factual or highly creative in nature. While there is an artistic approach to the work, it is predominantly factual. Put another weight in the Favoring pan.
Factor 3: Amount and substantiality of the portion used in relation to the copyrighted work as a whole
This image was possibly one of many in a larger publication. Put a small weight in the Favoring pan because there’s uncertainty.
Factor 4: Effect of use of infringing work on the potential market for or value of the copyrighted work
If it's true the image is just a fraction of the whole work, the impact of its presence on the market value of the original would be relatively lower. If the image itself is copyrighted independently of any other work, the fact that the file size is very small means that its quality is low and wouldn’t likely be a substitute for the original. Put a final weight in the Favoring Fair Use pan.
An analysis of the Four Factors of Fair Use favors use of an image for a The Copyright Desk's case study. The fact that this Fair Use analysis has been done is also evidence of good faith which could have a positive bearing on the copyright user if the copyright owner chose to sue for infringement. Finally, a take-down request is likely to precede an infringement lawsuit which would give the user the opportunity to stop using the image and avoid a lawsuit (which could be costly for both owner and user).