Thursday, September 17, 2015

OER, Fair Use, and Fair Practice Part III: Flickr Commons and "No Known Copyright Restrictions"

This post explores the difference between using an image under Flickr Commons Commons under fair use vs. commercial purposes.

As I shared in the first post on this topic, I explored Flickr Commons in search of a photo to use for a canvas I was creating for the Jazz-on-Film-with Friends, a memento of a private gathering at my home. 

And here is what I learned from that part of the journey. In the creation of the canvas, I was focused on the use of a Billie Holiday photo I'd found at Flickr Commons under the terms of fair use. And it did answer the following four conditions under fair use:

1) Purpose: The piece was for my personal, non-commercial, non-educational use.
2) Nature: the use of the image from the film did not embody the central intent of the film, and it was used to create something different from the original.
3) Amount: the image on the screen was only one frame of a nearly two-hour long film.
4) Effect: This personal memento would not affect film distribution.

Yet I was struck by the used of the phrase at the Commons, "no known copyright restrictions":

In reading the fine print, I learned that in the case of these wonderful photos by photographer Gottlieb, he donated his work of something like 1600 photographs of the golden age of jazz. He denoted that as of 2010, these works would go into the public domain, with the exception of those which had already been published by other source.

So here is what it meant for the photo I'd just placed on the canvas above. It had been published by Downbeat magazine, so I wanted to do something commercial with it, I most likely needed their written permissions because the image constitutes a whole work by Mr. Gottlieb.

Upon returning to the Gottlieb collection, I did find this image of Billy Holliday, one not published by anyone else, and since it was 2015, it was truly in the public domain.

Image Source: Library of Congress. Gottlieb Collection. ”Portrait Billie Holiday at Carnegie Hall Between 1946 and 1948.”:

Once again, here are some resources: (A very helpful Creative Commons 4.0 Fair Use Checklist can be found at the Columbia Site.)

Next: What do the various levels of Creative Commons Licensing mean?

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