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Think I've misunderstood 'Fair Use'

Posted: Sun Mar 18, 2018 7:03 pm
by Hesperus23
Hi, I'm new to all this and could do with some advice...
I recently took over the editorship of a fanzine dedicated to a 'cult' TV show. We have permission from the estate of it's originator and a long standing agreement with the current copyright holders that any images from said TV series are okay to use or base original artwork on, so long as we do not make any money from the publication, which we certainly do not - the magazine is distributed for free amongst our members. None of the content is displayed on the internet and we have a very small readership within our fan society. So far so good! My problem is that one of the actors who appeared in an episode of the series died recently and for our last issue I hurriedly wrote an obituary, in which I included six small images from other film and TV productions he had appeared in. When I did this I was under the impression that this would be covered under 'fair use' as I was writing a news item which discussed the career of the actor, but now I think I've infringed copyright. Am I correct in this assumption, and if so, what should I do? I'm learning about these things as I go along and want to keep everything above board, but think I've made a bad mistake.

Re: Think I've misunderstood 'Fair Use'

Posted: Sun Mar 18, 2018 8:20 pm
by AndyJ
Hi Hesperus,

If you are based in the UK, the exceptions to copyright come under the heading of fair dealing, rather than the US doctrine of fair use. This may seem like hair-splitting, but the two are subtly different and so to avoid confusion I will speak about fair dealing.

You are right that there is a fair dealing exception (section 30(2) of the Copyright Designs and Patents Act 1988) for the purpose of reporting on current events, and this would undoubtedly include an obituary. The snag is, the exception specifically excludes the use of photographs. Somewhat ironically, the US doctrine of fair use would have allowed the use of photographs.

However, all is not lost. There is also an exception for criticism and review, which would cover the use of photographs by way of illustration, provided that the item being reviewed was itself a copyright work, that is to say, a film or TV show. Assuming that you made sufficient mention of the actor's role(s) in the actual films and programmes for which you used stills in the text, section 30(1) should just about cover this use, provided that you also acknowledged the films/programmes concerned.

From the question you posed, it doesn't sound as if anyone is claiming infringement at this stage and so I don't think you need to be too concerned. If you are approached over the matter, you should explain that you believe you are covered by section 30(1). If the person who contacts you is a lawyer, they may well accept that you know enough about the law to make it unwise to test your assertion further. There are certainly no grounds for assuming you have caused any financial loss to any film or TV company by your actions. You should check the source of the stills concerned (assuming that you did not make them yourself). If it turns out that the source is a commercial picture library, they are the people most likely to want to take the matter further by charging you a retrospective fee for the use, and they will probably have active measures in place to track the use of their images. However given the relatively narrow circulation of your fanzine, I wouldn't be surprised if this remained under their radar which will be aimed primarily at the internet.

Re: Think I've misunderstood 'Fair Use'

Posted: Sun Mar 18, 2018 9:15 pm
by Hesperus23
Hi Andy.
Thanks for your help with this, I appreciate it very much. I'm not concerned that anybody's going to come after me in the short term, rather that some of the strange inhabitants of fandom may stick their oar in at some point. Bitter experience has taught me that if you say something about somebody's favourite star that they disagree with, they will go to great lengths to cause you trouble. This happened to my predecessor on the mag, but fortunately in that instance it was only a matter of digging out the correct paperwork to clear the matter up. Anyway, thank you again for your excellent advice.