An oft discussed and frequently misunderstood “defense” to copyright infringement is commonly referred to as the ‘educational use’ exception.
There are few court decisions that are binding, where the use of a copyrighted work in what appears to be an educational piece but is really employed for the purpose of promoting a personal business or service did not qualify under the fair use exception even though Ed has had many of those cases. (Note: under NY Law a model whose image is used without written consent in such type uses has a much easier course to victory.)
Example: An ad urging everyone get tested for diabetes run by companies who sell insulin and/or doctors who treat diabetes and paid for by a “non-profit” foundation. The real intent is sell products and/or services rather than to inform the public about diabetes.
Get ready for some legal stuff now:
Basic Books, Inc. v. Kinko’s Graphics Corp. was a case in the Federal Court in NYC. The court discussed the issue of, “how to distinguish between a use which is “commercial” in nature, or a use which is for a “nonprofit educational” purpose.
That court used several factors:.
- Purpose and character of the use
- Transformative use: Merely “repackaging” or “republishing” is not likely to pass the test
- Commercial use: Was there intention to make profits from this use? (Some/most cases say this can be interpreted as an attempt to “steer eyeballs” to a commercial site regardless of whether any profits were made or could be ascertained.)
- Nature of the copyright work: Factual vs. Fictional
- Factual is more likely to be acceptable for public use and less likely to be found as an infringement. This is somewhat vague but it is often a factual determination of whether the use was a true PSA or not.
- Fictional is less likely to be acceptable for public use and more likely to be found as an infringement. For example incidental use in a novel or TV drama like ‘Law and Order” which although “ripped from the headlines” is clearly a work of fiction.
- Amount and substantiality of the portion used
- Quality of the work: In our opinion you can read into this factor the reputation of the photographer. The bigger the reputation the less likely an “educational use” will be found.
- Quantity of the work: The more work taken the less likely a fair use determination will be made by a judge/jury.
- Effect of the use on the relevant market: Would the use, adversely affect the potential market for the copyrighted work? For example does this photographer sell fine art prints of the image for $10,000 a pop and live on a yacht thanks to such sales.
A court can also take in to consideration any licensing or “permission fees” to ordinarily use his/her work as a main source of income for the plaintiff. (Ed’s opinion based on prior judge’s off the record opinions is that it need not be a main source – just a meaningful income producer for the photographer.)
Harper & Row, Publrs. V. Nation Enters was a US Supreme Court case which – in English – says that the question that must be asked when determining what is considered to determine the issue of nonprofit use vs. profit enabled use is whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.
SCOTUS is the highest court in the land and so Ed uses the above decision in court in his cases. Why should a judge (or Ed) attempt to go out of his/her way to argue with the nine folks who get lifetime appointments?
Here is a real life scenario with the names etc. changed:
A NYC big shot oral surgeon who is a professor at a school of dentistry is sent to Chad. He/she makes a presentation at a government run hospital of a new, cheap and effective way to fix cleft palettes of indigent children. The process involves using a bone like artificial material. Three big pharma companies each make different versions of the same material.
The doctor’s trip was paid for by company A. In the power point presentation to the African hospital and its staff, the surgeon only mentions company A’s product and show photos of that product. Company A paid the surgeon to make the presentation and picked up the expenses for the trip.
Company A’s defense for the numerous infringements of registered images was “educational purposes”. The judge laughed…a lot.
Bottom line: there is no one size fits all answer to these type questions.