QUESTION OF THE MONTH: Using Copyrighted Images on Fan Sites

QUESTION:

Dear Center for Social Media,

I have a question and hopefully you could provide me some insight: I'm part of "fan culture," where on the internet, countless fans create graphics using screen captures of copyrighted images. These fan sites are always non-commercial, and have been in plain view for the past 10 years, but companies scarcely have such material removed. Is this use of copyrighted images Fair Use or copyright infringement?

Thanks,

Ms. Spock

ANSWER:

Dear Ms. Spock,

Fair Use is always a case-by-case judgment, so there is no overarching rule. But the same principles that shape the Codes of Best Practices for documentarians, online video makers, media literacy teachers, and dance archivists could be applied on a case by case basis by anyone producing fan work on the basis of previously copyrighted material. The basic questions to ask are: 1) are you repurposing the material, or using it for the original purpose? (this is the “transformative” purpose, a very powerful element of Fair Use law) and 2) did you use just enough in order to accomplish your new purpose? You need an answer to those two questions that could satisfy a reasonable person (not the copyright holder, who also might be a reasonable person, but perhaps not about their copyright holdings) who was not a member of the fan community. Fan communities will be in an even stronger position at the moment that they decide to create their own codes of best practices. The Codes of Best Practices facilitated by the Center for Social Media and the Washington College of Law have been crafted by members of use communities, with vetting by experienced lawyers, and have been in continuous unchallenged use in some cases since 2005.

Good luck!

Center for Social Media