Fair Use?

James White over at Pros Apologian is up in arms about being asked to pull a photo on his blog:

Back on June 30th I posted a short note regarding the abuse inherent in depriving a little child of a father and a mother that comes from "same sex unions." I made reference to a picture, posted on the Internet, in a major news source (MSNBC) as a glowing example of just how self-centered "same sex unions" have to be by nature. Here is the article I posted.

I was contacted by "jennifer kozumplik/nicole webber" (name provided on the contact page) and told to remove the image, found in the above linked article. I have done so pending my getting legal advice on the matter. You will find the image on the following websites, and something tells me "jennifer kozumplik/nicole webber" haven’t contacted USA Today, MSNBC, etc., demanding that the picture be removed. As I have said many times, and as more and more people are discovering, homosexuals do not ask for equal rights: they want super-rights, including the ability to shut down all expression of belief that reminds them of the moral evil by which they have chosen to identify themselves. This is a glaring example. Note the use of this picture by such national online sources as MSNBC and USA Today. Google will provide you with lots of examples, such as this one.


Let me first point out that what I think James meant to write was "some homosexuals do not ask for equal rights: they want super-rights", because obviously not every single homosexual wants super-rights. I’m sure that was just a typo.

But James does raise some interesting points

  1. Do we think that a gay couple having children (obviously with a sperm or egg or womb donor – we’re not talking about men and women who bring their children from previous relationships into gay relationships) is selfish?
  2. Is James White correct in his claim that the attempted gagging of him as regards this photo has less to do with protecting copyright and more to do with those in the photo objecting to his moral stance on their lives?
  3. Yes, I've taken the plunge and I'm showing the picture in question originally taken by Tony Avelar and distributed by AP, as a fair use of the image to describe the controversyDo we think that posting a picture of a child that has been posted ad infinitum on other websites (and specifically by the parents) is acceptable for the purposes of describing such a situation. Here in the UK (and I think in the US as well) posting such a photo would obviously be "fair use" if it was copying another person’s content for the sake of clarifying a point. The legal case for internet use is pretty clear cut and if you look at this case you’ll see that the picture of the gay couple’s kid are originally displayed in the manner of a report rather than of an artistic piece of work, so to reproduce them as part of a description of the report would be clearly fair use.

Yes, I’ve taken the plunge and I’m showing the picture in question originally taken by Tony Avelar and distributed by AP, as a fair use of the image to describe the controversy. Would you expect anything less of me?

Under US fair use law, four factors are explored as to whether the use of someone else’s intellectual or creative property is fair use. Let’s think about them as regards this photo:

i) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

I’m very clearly using this image for a non-profit purpose. Neither am I depriving Kozumplik and Webber of any financial gain as they acquire no income from the picture in the first place

ii) the nature of the copyrighted work

It’s a photograph that has been widely distributed

iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole

Given that unlike text you can’t quote from a photograph, the issue here is whether the photograph in and of itself constitutes the entirity of the original report or just a portion. It’s obviously the latter.

iv) the effect of the use upon the potential market for or value of the copyrighted work.

Given that the couple have had no financial benefit from the photograph, this would be a matter for AP (Associated Press).

We conclude that under US law the use of the photo in this blog to illustrate the case is fair use. Talking to my legal friends here, English fair use is a touch more lenient than US.

Of course, there is also the view that I shouldn’t be posting pictures of other people’s kids on the web without their permission, and normally I wouldn’t even think of doing that, but in this case, as James White points out, the couple has a picture of their child made available on a full public access website. Hardly the best thing to do if you’re accusing somebody else of invading your child’s privacy by posting a photo of them.

Your opinions are welcome.

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