An oft discussed and frequently misunderstood\u00a0“defense” to copyright infringement is\u00a0commonly referred to as\u00a0the\u00a0\u2018educational\u00a0use\u2019 exception.<\/p>\n
There are few court decisions\u00a0that are\u00a0binding, where\u00a0the\u00a0use of a copyrighted work in what\u00a0appears to be\u00a0an\u00a0educational\u00a0piece but is really employed for the purpose of promoting a personal business or\u00a0service\u00a0did not qualify under the fair use exception even though\u00a0Ed 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.)<\/p>\n
Example:\u00a0 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.\u00a0 The real intent is sell products and\/or services rather than to inform the public about diabetes.<\/p>\n
Get ready for some legal stuff now:<\/p>\n
Basic Books, Inc. v. Kinko\u2019s Graphics Corp. was<\/strong>\u00a0a case in the Federal Court in NYC. The\u00a0court discussed the issue of, \u201chow to distinguish between a use which is \u201ccommercial\u201d in nature, or a use which is for a \u201cnonprofit\u00a0educational\u201d purpose.<\/p>\n That court used several factors:.<\/p>\n A court can also take in to consideration any licensing or \u201cpermission fees\u201d to ordinarily use his\/her work as a main source of income for the plaintiff. (Ed’s\u00a0opinion based on prior judge’s off the record opinions is that it need not be a\u00a0main source\u00a0– just a meaningful income producer for the photographer.)<\/p>\n Harper & Row, Publrs. V. Nation Enters\u00a0<\/strong>was a US\u00a0Supreme Court case which – in English –\u00a0says that\u00a0the question that\u00a0must\u00a0be asked when determining what is considered to determine the issue of\u00a0nonprofit use vs. profit enabled use is\u00a0whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.<\/p>\n SCOTUS is the highest court in the land and so Ed uses the above decision in court in his cases. Why should\u00a0a judge (or\u00a0Ed) attempt to go out of his\/her way\u00a0to argue with the nine folks who get lifetime appointments?<\/p>\n Here is a real life scenario with the names etc. changed:<\/p>\n A NYC big shot\u00a0oral surgeon\u00a0who is a professor at a school of dentistry\u00a0is sent to Chad. He\/she makes a presentation at a government run hospital\u00a0of a new, cheap and effective way\u00a0to fix cleft palettes of indigent children.\u00a0 The process involves using a bone like artificial material. Three big pharma companies each make different versions of the same material.<\/p>\n The doctor’s trip was paid for by company A. In the power point presentation to the African hospital and its staff, the surgeon\u00a0only\u00a0mentions 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.<\/p>\n Company A’s defense for the numerous infringements of registered images was\u00a0“educational purposes”.\u00a0 The judge laughed…a lot.<\/p>\n Bottom line: there is no one\u00a0size fits all answer to these type questions.<\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" An oft discussed and frequently misunderstood\u00a0“defense” to copyright infringement is\u00a0commonly referred to as\u00a0the\u00a0\u2018educational\u00a0use\u2019 exception. There are few court decisions\u00a0that are\u00a0binding, where\u00a0the\u00a0use of a copyrighted work in what\u00a0appears to be\u00a0an\u00a0educational\u00a0piece but is really employed for the purpose of promoting a personal business or\u00a0service\u00a0did not qualify under the fair use exception even though\u00a0Ed has had many of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[151,1,15,20],"tags":[499,503,498,188,214,501,500,502],"class_list":["post-1563","post","type-post","status-publish","format-standard","hentry","category-be-aware","category-copyright-info","category-legal","category-stuff-you-should-know","tag-basic-books","tag-chad","tag-educational-fair-use","tag-fair-use","tag-fair-use-defense","tag-harper-row","tag-inc-v-kinkos","tag-publrs-v-nation-enters"],"_links":{"self":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1563","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1563"}],"version-history":[{"count":3,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1563\/revisions"}],"predecessor-version":[{"id":1569,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1563\/revisions\/1569"}],"wp:attachment":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1563"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1563"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1563"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
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