Today we’re looking at Authors Guild, Inc. v. Google Books (comic written by Kyle K. Courtney and Jackie Roche from 2018) and a couple of cases related to artwork…enjoy!
(Read more about the case here.)
“Famous” Fair Use Cases: Artwork
Fair use. A publisher of monster magazines from the 1950s, ’60s, and ’70s sued the creator and publisher of a book, Famous Monster Movie Art of Basil Gogos. (Gogos created covers for the magazines.) The book publisher had obtained licenses from the artist directly, but not from the magazine publisher who claimed copyright under work-made-for-hire principles. The district court determined that the use was transformative. Important factors: The use was for a biography/retrospective of the artist, not simply a series of covers of magazines devoted to movie monsters. In addition, the magazines were no longer in print, and the covers amounted to only one page of the magazine, not the “heart” of the magazine. (Warren Publishing Co. v. Spurlock d/b/a Vanguard Productions, 645 F.Supp.2d 402, (E.D. Pa., 2009).)
Not a fair use. The U.S. Postal Service (USPS) licensed the use of a photograph of the Korean War veterans’ memorial sculpture for a postage stamp, but failed to obtain permission from the sculptor who held copyright in the underlying three-dimensional work. The U.S. Court of Appeals for the Federal Circuit held that the use of the underlying sculpture depicted in the photograph was not permitted under fair use principles. Important factors: It was not enough to transfer the work from three dimensions to two dimensions (despite the creative use of photography and snow in conjunction with the photos). (Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010).)
Scholarly Communication &
Undergraduate Engagement Librarian