Michigan Heirlooms - situation resolved

[fortyonenorth]

Originally Posted by mx4inpa

Copyright does not prohibit all copying or replication. In the United States, the fair use doctrine, codified by the Copyright Act of 1976 as 17 U.S.C. § 107, permits some copying and distribution without permission of the copyright holder or payment to same. The statute does not clearly define fair use, but instead gives four non-exclusive factors to consider in a fair use analysis. Those factors are:

1. the purpose and character of the use;
2. the nature of the copyrighted work;
3. the amount and substantialness of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.[49]

Just looking at this a case could be made for fair use in my eyes at least, in this instance maybe.

1) the website is selling seeds not photos
2) the nature of the work is the exact way the website used it, as a description of a product, not the product itself
4) no effect since said picture was not being sold

Bad form at least to not ask permission. But sometimes it seems that a big deal is made over copyright when the owner isnt selling the "art" to begin with.

As I said, there are exceptions - and yes, fair use is one of them. However, I could easily argue:

1) the website promotes a commercial enterprise
2) using the photograph represents 100% of the copyrighted work
3) there's nothing to say that the photo wasn't available for sale as stock photography.

The fair use doctrine is successfully invoked in cases of face-to-face instruction, critical review, parody, transformational use and in other cases. I can tell you from experience, even in apparently clear cases of fair use, there's often a good argument to the contrary. ANYONE, can claim fair use - but that doesn't mean the judge is going to buy it.