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I googled it before I commented, and I can't find any lawyers who agree with that. They all say it might be possible, but that fair use is definitely not automa

by dahart 7y ago

I googled it before I commented, and I can't find any lawyers who agree with that. They all say it might be possible, but that fair use is definitely not automatic, and that the best course of action is always to either acquire rights explicitly, or only post images that you have explicit rights for.

dredmorbius 7y ago
So: 1. Yes, fair use is not an automatic pre-emptive validation of copyright infringement. Rather it is... 2. Under US law, an affirmative defence: "A new fact or set of facts that operates to defeat a claim even if the facts supporting that claim are true." (https://legal-dictionary.thefreedictionary.com/Affirmative+Defense https://legal-dictionary.thefreedictionary.com/Affirmative+D...) That is, ajudication occurs in a legal (or criminal) case. 3. Also US law: there is a four-part test for fair use for fair use, the purpose and character of the use, the nature of the work, the amount of the work utilised, and the impact on the market of the original. Not all, or indeed any one test need be met for fair use to be found. 4. There is a parody right which has been argued, sometimes successfully, sometimes not, for fair use. I won't get into the argument but suggest: https://corporate.findlaw.com/intellectual-property/parody-fair-use-or-copyright-infringement.html https://corporate.findlaw.com/intellectual-property/parody-f... which begins "It has been a long-standing practice to poke fun at our cultural icons, symbols, public figures and celebrities." Commentary by way of analogy or reference is also a long-standing tradition, which it could be argued that memes extend. I'm not claiming these rights are absolute or uncontroversial. However they've been argued and asserted, and there is basis for a fair-use defence of virtually any meme use, so long as it's not injurious to the original. The case of whether or not unpopular, fringe, or extremist-group adoption of specific images, concepts (a difficult case under copyright), characters, symbols, etc., might be considered injurious, and prosecutable via copyright, is ... an interesting question.
- dahart 7y ago
  > However they've been argued and asserted, and there is basis for a fair-use defence of virtually any meme use, so long as it's not injurious to the original. Yeah, fair use definitely has been used successfully. And in many meme cases I'd agree the meme is not necessarily injuring the original. (Though note, lack of injury is in no way sufficient to justify copyright infringement.) But I would speculate(!) that meme images being irrelevant to a photo undermines the fair use defense, that using a copyrighted photo to comment on something other than the subject in the photo means that use of the photo is not "commentary" relevant to the photo that supports fair use.
  - dredmorbius 7y ago
    Copyright, again, in US law (applies to many though not all HN readers) is hinged on a Constitutional justification "To promote the Progress of Science and useful Arts" (Art I, Sec 8, Clause 8). That is: to provide a benefit to the public. An element of which, this house argues, is the enjoyment of and illumination provided via, Internet memes.

by dahart 7y ago

dredmorbius 7y ago

So: 1. Yes, fair use is not an automatic pre-emptive validation of copyright infringement. Rather it is... 2. Under US law, an affirmative defence: "A new fact or set of facts that operates to defeat a claim even if the facts supporting that claim are true." (https://legal-dictionary.thefreedictionary.com/Affirmative+Defense https://legal-dictionary.thefreedictionary.com/Affirmative+D...) That is, ajudication occurs in a legal (or criminal) case. 3. Also US law: there is a four-part test for fair use for fair use, the purpose and character of the use, the nature of the work, the amount of the work utilised, and the impact on the market of the original. Not all, or indeed any one test need be met for fair use to be found. 4. There is a parody right which has been argued, sometimes successfully, sometimes not, for fair use. I won't get into the argument but suggest: https://corporate.findlaw.com/intellectual-property/parody-fair-use-or-copyright-infringement.html https://corporate.findlaw.com/intellectual-property/parody-f... which begins "It has been a long-standing practice to poke fun at our cultural icons, symbols, public figures and celebrities." Commentary by way of analogy or reference is also a long-standing tradition, which it could be argued that memes extend. I'm not claiming these rights are absolute or uncontroversial. However they've been argued and asserted, and there is basis for a fair-use defence of virtually any meme use, so long as it's not injurious to the original. The case of whether or not unpopular, fringe, or extremist-group adoption of specific images, concepts (a difficult case under copyright), characters, symbols, etc., might be considered injurious, and prosecutable via copyright, is ... an interesting question.

dahart 7y ago
> However they've been argued and asserted, and there is basis for a fair-use defence of virtually any meme use, so long as it's not injurious to the original. Yeah, fair use definitely has been used successfully. And in many meme cases I'd agree the meme is not necessarily injuring the original. (Though note, lack of injury is in no way sufficient to justify copyright infringement.) But I would speculate(!) that meme images being irrelevant to a photo undermines the fair use defense, that using a copyrighted photo to comment on something other than the subject in the photo means that use of the photo is not "commentary" relevant to the photo that supports fair use.
- dredmorbius 7y ago
  Copyright, again, in US law (applies to many though not all HN readers) is hinged on a Constitutional justification "To promote the Progress of Science and useful Arts" (Art I, Sec 8, Clause 8). That is: to provide a benefit to the public. An element of which, this house argues, is the enjoyment of and illumination provided via, Internet memes.