Legal Question in Intellectual Property in California

I have recently asked a question, but feel I must clarify. Here is the question and answer:

Question: Would it be legal to use a still image from a movie., then Photoshop another person into the scene for a picture on my website? It would a parody and open to the public

Answer: Possibly would be deemed "fair use" but not 100% guaranteed you wouldn't have to defend to establish fair use. Nevertheless, not many suits are being filed over this kind of non-commercial re-uses of stills.

My concern is commercial use. What I intend to do is to attract web-viewers to my site with interesting articles on random topics. The Photoshoped stills would be used to enhance the articles.. The part I'm puzzled about, is that I do make profit on people clicking on advertisements on my site. Would this be considered commercial? Still fair use? For example, I write an article on aliens landing in hostile territory, then below the article is a picture of Osama Bin Laden touching fingers with E.T..

I wish I could show you an example. But if it is indeed a violation of fair use, I'm afraid Steven Spielberg would file suit.

I appreciate any advice you can give me.


Asked on 2/10/11, 1:08 am

1 Answer from Attorneys
Keith E. Cooper Keith E. Cooper, Esq.

The use you describe would most probably not be considered "fair use." And, the example you gave would be "satire" (using a popular image to comment on something else), not "parody" (commenting on the popular image itself), which legally is not considered a fair use of copyrighted material.

Whether you make money off the infringement is irrelevant in copyright cases. Even if you gave your images away to your friends for free, it's still copyright infringement and you're liable for damages.

There is a full discussion of fair use, and the factors used to decide it, in Volume 2, Rights, of the What Every Filmmaker Need to Know About the Law DVD series available at http://www.WhatEveryFilmmakerNeedsToKnowAboutTheLaw.com

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Answered on 2/10/11, 12:09 pm


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