Re: filmscanners: OT: Copyright on Photo's

[Terry Carroll <carroll@tjc.com>]

On Fri, 20 Jul 2001, Frank Nichols wrote:

> My question is: "Can I scan them, and display a small picture of them
> on eBay for advertising without violating the copyright of the
> original photographer?"

A definitive answer is not clear.  To be on the safe side, I would say no.

There's a provision of the copyright act (I'm talking US, here, other
jurisdictions may be different) that says:

     In the case of a work lawfully reproduced in useful articles that
     have been offered for sale or other distribution to the public,
     copyright does not include any right to prevent the making,
     distribution, or display of pictures or photographs of such articles
     in connection with advertisements or commentaries related to the
     distribution or display of such articles...

But this is talking about "useful articles."  An example of a useful
article would be a can opener with an ornamental handle subject to
copyright; under this exception, it would not be an infringement to show
the can opener, including the handle, in the ad.

But it is limited to works in useful articles, and by implication, that
means that copies that are not useful articles (as in your query) would
not be covered.

My sense is that you have to rely on the copyright owner not raising an
objection.  One way of doing that may be to deliberately deface the scan
with a watermark or something, so that it clearly can't serve as a
substitute for an authorized copy.  That doesn't technically make it
non-infringing, but makes it less likely that the copyright owner would
object.


-- 
Terry Carroll       |  "Denied."
Santa Clara, CA     |      Baltimore Ravens v. Bouchat, no. 00-1494,
carroll@tjc.com     |      (U.S. Supreme Court, May 21, 2001)
Modell delendus est |