runner301
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 p.1 #6 · Incidental reproduction of art (copyrighted works) | |
You need to be careful. I would try to get permission from the artists. I used to do legal work in this area. The key to fair use in this case would be to what extent the artwork would be visible in the images you take. This is the De Minimis Defense, which claims that the copyrighted artwork is too small to be clearly recognizable
"In some cases, the amount of material copied is so small (or "de minimis") that the court permits it without even conducting a fair use analysis. For example, in the motion picture Seven, several copyrighted photographs appeared in the film, prompting the copyright owner of the photographs to sue the producer of the movie. The court held that the photos "appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable." The court excused the use of the photographs as "de minimis" and a fair use analysis was not required. ( Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998).)
As with fair use, there is no bright line test for determining a de minimis use. For example, in another case, a court determined that the use of a copyrighted poster for a total of 27 seconds in the background of the TV show, "Roc" was not de minimis. What distinguished the use of the poster from the use of the photographs in the Seven case? The court stated that the poster was clearly visible and recognizable with sufficient observable detail for the "average lay observer " to view the artist's imagery and colorful style. ( Ringgold v. Black Entertainment Television, Inc. 126 F.3d 70 (2d Cir. 1997).)"
-from the Stanford Copyright and Fairuse Website
Many factors would come into play in a case like this, including the prominence of the artwork in your images, the original value of the artwork, and the uniqueness of the artwork. For the most part, seeing as your images would actually increase viewership and therefore the value of the artwork, (assuming the artwork is by local, not nationally famous artists), you would probably be clear under fair use, but you never know...
It would be much easier to simply get permission from the artists.
Have a great day!
Tom
Edited on Apr 03, 2008 at 11:24 AM
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