Bjorn; I think your webpage use of the photo falls well within the "fair use' doctrine. Additionally whatever copyright Pennstate may have put on their site, it may not apply to the photo itself, I doubt they own the copyright to the picture. Via: http://library.wustl.edu/~listmgr/imagelib/Oct1994/0007.html In addition, R.S. Talab, author of "Commonsense Copyright: A Guide to the New Technologies," (McFarland, 1986) writes, "Works by known authors copyrighted prior to 1907 will have the first term of 28 years expired and any possible renewal period of extension expired, as well. Works copyrighted from 1907 to 1935 will have copyright terms of 75 years [the original 28 years plus a possible renewal of 47 years]. These works began falling into the public domain in 1982. For example, a work written and copyrighted on January 15, 1926 will go into the public domain on January 16, 2001 (26 + 75). Works published after 1935 are subject to the new copyright term of the life of the author plus 50 years" (26). Following this interpretation, anything printed before 1919 is now in the public domain. The following web page is from Pennstate. http://www.libraries.psu.edu/mtss/fairuse/dalziel.htmlTitle: FAIR USE GUIDELINES FOR EDUCATIONAL MULTIMEDIA
Background and Sumary
At Issue:
Today, a professor who wants to use three minutes of
a motion picture, digitize a photo, or use 30 seconds
of a symphony in a multimedia production risks being
sued by the copyright owner. Neither the Copyright
Act of 1976 nor the fair use guidelines that followed
its passage, address the production of educational
multimedia.
The lack of fair use guidelines for educational multimedia places a huge burden on educators who want to take advantage of today's new teaching technologies. According to the Copyright Act of 1976, an educator must obtain copyright permission to duplicate or change an image in any way. Consequently, digitizing an image to incorporate it into a multimedia project requires faculty to obtain permission for each copyrighted piece they use in their program. When one multimedia production can easily contain over 2,000 copyrighted works, paying royalty fees and obtaining formal permission to use each piece can be extremely costly and time consuming. Often it is impossible to track down who owns the rights to a certain photograph or other piece of work.
Background:
According to the Copyright Act of 1976, copyright owners
have the exclusive right to reproduce, prepare derivative
works, distribute, transfer ownership, rent, lend,
perform or display their creations. Fair use places
a limit on these exclusive rights to promote free speech,
learning, scholarly research and open discussion in
accordance with the First Amendment. Educators must
prove four conditions or "factors" exist
to legally use portions of copyrighted material.
*First, the "purpose and character of the use" must be educational in nature.
*Second, the work should be published, since an author generally will not publish a creation if he or she wants to keep it from the public eye. Courts also favor nonfiction for fair use over fiction.
*Third, the copied material must be an excerpt or "portion" of the whole and not a "substantial" part of the work -- even a small portion could be substantial if it constitutes a central or critical part of the original work.
*Fourth, the teacher must consider the "effect of the use of the work." This fourth factor, in which the Supreme Court has said the use cannot impair the marketability of the work, is probably the most difficult to determine and the most controversial in a fair use analysis.
Because this four factor test is vague and often subjective,
shortly after Congress passed the Act in 1976 a group
of publishers and educators gathered to agree to more
specific guidelines colleges could follow and be reasonably
sure they would not be sued for copyright infringement.
These guidelines provide educators a legal "safe harbor"
from litigation if they remain within the guidelines' precepts.
If the institution transcends the limitations, the copyright holders
could challenge its actions.
In September 1994, the National Information Infrastructure Working Group on Intellectual Property Rights convened the Conference on Fair Use, CONFU, to address the shortcomings of the Copyright Act of 1976. The conferees agreed the Act should be updated to reflect how technologies are used in the classroom and how course material is transmitted over distance learning networks. Meanwhile, members of the Consortium of College and University Media Centers, CCUMC, had already seen the need to develop fair use guidelines that would speak to their new method of teaching. CCUMC proceeded to draft the Fair Use Guidelines for Educational Multimedia, a document that will probably be adopted by CONFU.
The Fair Use Guidelines for Educational Multimedia only applies to educators who produce multimedia, a derivative work in the eyes of the Copyright Act. A CONFU subcommittee is creating Educational Fair Use Guidelines for Digital Images, a document that outlines the fair use of displaying entire copyrighted works to students, such as in an art or photography class. A second committee is discussing whether educators should be allowed to transmit entire dramatic works over distance learning networks, a fair use allowed by the Copyright Act in face-to-face teaching situations, but not for remote instruction.
How These Guidelines will Help Educators:
*The Fair Use Guidelines for Educational Multimedia
will provide educators the assurance that they will
not be sued if they abide by the precepts outlined
in the document. Most, if not all, of the major U.S.
owners of copyrighted material helped to produce these
guidelines and many have already agreed to endorse
the document.
*The portion and time limitations will help faculty easily identify whether using a certain copyrighted work in their multimedia program is fair or not. They will not have to undergo a four factor legal analysis for fair use for every incorporated item.
*They outline how faculty can incorporate various learning environments into their teaching. Neither the Copyright Act, nor previous fair use guidelines, fully describe the new teaching methods of multimedia or remote instruction.
*They will help faculty and educators gain a better understanding of the extremely complex doctrine of fair use.
Summary of the Agreements:
*The conferees agreed educators may use their multimedia
productions, which contain portions of copyrighted
material (the amounts are specified in the guidelines),
for teaching purposes, up to two years after the first
instructional use with a class. Use beyond two years
requires obtaining permission for each copyrighted
portion incorporated in the production.
*If at any time the educator wants to commercially reproduce or distribute the work, he or she must obtain copyright permission for all copyrighted material.
*For practical purposes, the guidelines strongly advise the producer to take steps to obtain permissions during the development process rather than wait until after the product is completed when it could be more difficult.
*The conferees agreed educators can use the unfinished unreleased production for teaching purposes over a closed network or distance learning system provided there are technological limitations restricting access to the network and program, such as a password or PIN, and the technology prevents making copies of copyrighted material.
Are the Portion Limitations Too Small?
The portion limitations in the Fair Use Guidelines for
Educational Multimedia are small, but this document
was reviewed by major producers of educational multimedia
who agreed they can still produce effective multimedia
programs within the limitations. Without the guidelines,
an educational institution has no assurance it will
not be sued if it uses even one photograph in a educational
multimedia production. It is important to remember
this is a compromise document and protects the interests
of both educators and producers. Colleges need to
be free to use material within the scope of fair use,
but as more educational institutions become copyright
owners they also need to be protected from those who
want to use the educational products they develop.
Some producers would argue the limitations are too
large. Educational institutions with the legal resources
are also free to go beyond the limitations specified
in the guidelines if they think a court of law will
rule the use was fair. However, the participants agreed
the risk of being sued for copyright infringement increases
the more one goes beyond the portion limitations.
Will this Document Set a Legal Precedent?
Since they are guidelines, the Fair Use Guidelines for
Educational Multimedia is not a legal document, but
an agreed interpretation of the Copyright Act of 1976
by copyright owners and educational users. If a court
rules the portion limitations are too restrictive for
fair use, the law will supersede the guidelines and
educators will be free to use even more material in
their multimedia productions. Why wait for the courts
to act when an agreement is on the table today? The
only thing educators will have lost is the ability
to use the extra material while waiting for the courts
to decide. However, during that waiting period educators
will have had the assurance they were acting within
the confines of fair use and students will have been
able to benefit from their multimedia programs.
Time is a factor:
The participants involved spent over two years negotiating
the Fair Use Guidelines for Educational Multimedia.
Educators need the assurances contained in this document
to proceed with the multimedia projects they are developing
today. It will take at least two years to develop
a new set of fair use guidelines for educational multimedia
should these fail. The major players from the proprietary
and educational communities have attended these meetings.
They know they have made significant progress and
will not want to repeat the process any time soon.
The courts are the only other avenue that can provide
educators the assurance that using a certain amount
of copyrighted material in their multimedia production
is within the scope of fair use. No court cases that
outline these issues are currently pending.