Determining Fair Use of Images in an Online Encyclopedia

Question

Background

Fair use hinges on four factors, which are then weighed by judges:

1. Purpose and Character of the Use
2. Nature of the Copyrighted Work
3. Amount of Copyrighted Work Used
4. Effect of the Use on Potential Market for the Work

Fair use is also defined generally/vaguely, so it is to be determined on a case-by-case basis, where a judge and jury weigh these 4 factors to come to a determination on whether a use is considered a fair use.

For (1), Nolo says:

Since copyright law favors encouraging scholarship, research, education, and commentary, a judge is more likely to make a determination of fair use if the defendant's use is noncommercial, educational, scientific, or historical. However, an educational or scientific use that is for commercial purposes may not be excused by the fair use doctrine.

For (3), the amount of work in my case would be a full high resolution image.

For (2), a lot of the examples I have found are about fiction vs. non-fiction ("informational") works, which mostly applies to artwork and text, but not photography of things you would find in an encyclopedia (pictures of places, things, and people, for example).

For (4), the effect on the market of the work could be positive (if it is a generally good encyclopedia article) or negative.

All of these 4 factors should be weighed to determine if it is considered fair use to use the images.

Question

What are the key court cases and or factors to consider if you are making an online Encyclopedia or database of facts so to speak (like Wikipedia), where you have topics, and each topic might have several images to go along with custom articles describing or teaching about or analyzing the topic? The images can be CC of various kinds, or perhaps it is okay to use any image, even if it doesn't have a permissive license. Specifically I am looking for a list of the key examples regarding the combination of education (scientific, documentary, library, etc.) and images. Or if there aren't any related examples, if this situation could generically be assumed to be fair use.

The determining factors are, in my head, (a) are you trying to do a good thing, and (b) do you add anything to the equation? In terms of an Encyclopedia using arbitrary images published by various authors to the web, writing about the topic in which the image is used seems like it would count as fair use.

For example, say you were writing about the Origin of Tokyo, and used a modern high-res creative photograph of Tokyo taken by someone, such as this:

And you wrote about the Origin of Tokyo in your own words. Is that something which might be considered "fair use"?

1. The purpose is for education and to push society forward, and the photograph is transformed in the sense that the image is now in the context of an educational article, with "commentary" or "analysis" not necessarily about the image itself, but the image weaves into the fabric of the article to impress new knowledge on the consumer in a unique way.
2. The copyrighted work is not fiction (although it is a creative angle of a non-fiction thing).
3. The whole original work is used (i.e. the "original" high-res photograph available on the web).
4. If anything, traffic will increase or stay the same to the original image.

Also note, this is modeled after Wikipedia in the sense that it is a non-profit, doing this to spread free knowledge, but might rely on donations. If the donations count against it, in what way could you lower the risk so you can pretty much guarantee a fair use determination.

Answer 1

This repository has a list of numerous fair use cases that would be relevant. You have listed the criteria that go into a fair use defense, then you would want to make the arguments for and against these factors (plus the fifth, transformativeness). In a hypothetical exercise, you also have to explicitly state the factual assumptions that will come up. For example, "educational" use is a continuum, and for-profit technically-educational exploitation is less likely to benefit from the educational use desideratum, compared to free and serious-research exploitation (graduate seminars).

It is a mistake to try to reduce fair use to "does some good, and adds something". For example, if you willfully take a whole image for which permission can be reasonably obtained (upon payment of a nominal $10 fee), you are unlikely to benefit from a fair use analysis. We don't know how much the History Channel paid for the rights to that photo. Putting a copy of that image out there for anybody to take if they want does have an effect on market – it dilutes the sale value of the work to the copyright holder. A "balancing" analysis does not just go through a positive checklist to the effect that you can find some connection of the statutory factors, you also have to consider the arguments against fair use.