On 3/12/07, Marc Riddell michaeldavid86@comcast.net wrote:
It's a terrific photo, and I think it would look great on her Article page. My question is: couldn't someone just go ahead and upload it - and if there are issues down the line - they can be dealt with then?
No, you can't do that. You need to know all the requisite sourcing and licencing information before you start using the image.
However, even if you can't definitively determine the source and copyright status of the image, you may still be able to use it, as I explain below.
On 3/12/07, Ron Ritzman ritzman@gmail.com wrote:
On 3/11/07, Marc Riddell michaeldavid86@comcast.net wrote:
- I contacted the person who originally uploaded it to the Find-A-Grave
site, and he said he thought the photo wasn't copyrighted.
A shame that "assume good faith" doesn't apply here.
To use a photo under "fair use" do we have to know for a fact that a photo is copyrighted and by whom or can "fair use" be used for images where the copyright status is undetermined?
No to the first part of your question, yes to the second.
Since copyright is automatically acquired on creation of the work (this is the case in all relevant jurisdictions), it can be presumed that the work is copyrighted unless there is evidence to show that the copyright has expired (evidence of the date of creation) or that the work has been released into the public domain or freely licenced (evidence of such a release or grant of licence).
In the absence of such evidence, we must presume the work is copyrighted.
Because it can be presumed that a work is copyrighted until it can be confirmed otherwise, it is ok to simply state that the work is presumed copyrighted, and then approach it as one would any other copyrighted image.
Keep in mind that the image, and the use of the image, will still need to meet all of the fair use criteria. Given that Finney was a very high profile public figure, it may be difficult to meet criteria #1 - notwithstanding the fact that she is dead - given that there is a good chance that there is PD material available (pictures of her by the federal government may exist) and there is also the possibility that one of the many people who took pictures of her would be prepared to release their picture under a free licence.