Fair use of graphics and clip art

[jody]

I'm a hobbyist and create simple greeting cards for friends. I also do a little work on our web site and don't really make any money at all. Are the little common graphics you see public domain if they don't have copyright symbols and everybody uses them (and nobody gets sued) or would it be fair use since I'm not using them as part of a business?

 

[Michael Wechsler]

Originally posted by jody:
I'm a hobbyist and create simple greeting cards for friends. I also do a little work on our web site and don't really make any money at all. Are the little common graphics you see public domain if they don't have copyright symbols and everybody uses them (and nobody gets sued) or would it be fair use since I'm not using them as part of a business?

Just because you see everyone using something doesn't mean it's legal! I'd say that most things you see are protected by copyright although the risks of getting caught might be greater in some circumstances than others. Couple of things:

(1) Public domain does not mean that since it has been let loose in the public then the public can use it. Because a copyright owner doesn't go after every person using their work doesn't mean it falls into the rights of the public either! Public domain means things that don't fall into copyright protection or which may be owned by the public -- for example, the proceeds of the government work may be in the public domain, paid by taxpayer money. A work which the copyright protection ran out, e.g. an old book written 200 years ago, might be in the public domain. Clip art that has been used illegally throughout the Internet does not thrust it into the public domain!

(2) Fair use doesn't mean that if the value is small then it's fair to use the material. Fair use is set forth explicitly in section 107 of the Copyright Act, which reads:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  
• the nature of the copyrighted work;
  
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  
• the effect of the use upon the potential market for or value of the copyrighted work.
  • 
    
    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

• • 
    
    I'd say that the greater the element of commercial use of the work, the better chance something will not be fair use. This still does not mean personal use is fair use. Stick to the statute.