A faculty member had written an article that she was submitting for publication. She found an image on the Internet that represented the use of a piece of equipment well, but she couldn’t figure out who owned the image.
After using Google Image to search for other instances of the use of this image a copyright consultant 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 she intended to use the presentation, e.g., an educational seminar, she might have been able to justify using the image under the Fair Use provision of copyright law, but without an author’s name she would have to claimed 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.
Ultimately, the consultant recommended finding another image.
ASSISTANCE addressing copyright questions.
Can Arcadia University Use This Image for This Case Study?
Keywords: image, unknown author, copyright, Fair Use
Opinion: yes. The Four Factors of Fair Use are the basis for making the determination. While reading the following analysis, think about Fair Use as a balance scale with one pan called Favoring and the other Opposing.
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 initiative 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 Opposing pan.
Factor 2: Nature of the Work
The consideration here is whether the work is more factual or creative in nature. While there is an artistic approach to the work, it is primarily 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 very likely one of many in a larger publication. It would be nice to know for sure by having the source (which is otherwise uncertain) in hand, but the copyright owner would have to do the justifying. 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, indeed, the image is just a fraction of the whole work, the impact of its presence on the market value of the original would be negligible. 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.
Overall, it’s possible to deem that the use of this image as an illustration for this copyright case study tends to favor Fair Use. The fact that this Fair Use analysis has been done is also evidence of good faith which would have a positive bearing if the copyright owner chose to sue for infringement.
Consult this document from the United States Courts of the Ninth Circuit to see the basis for this Fair Use analysis: Copyright—Affirmative Defense—Fair Use.
Use UMinn Libraries’ Fair Use Analysis Tool to help you conduct your own.