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Wilton A. Person
Wilton A. Person, Lawyer
Category: Intellectual Property Law
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Experience:  MBA, Experienced and Knowledgeable in Intellectual Property Law
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I have a copy of The Art of Eating by M.F.K. Fischer Published

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I have a copy of The Art of Eating by M.F.K. Fischer
Published by the World Publishing Company 1954.
Can I take of photo of one inside page and publish in a magazine as art?
Thank you for your question. To clarify, you are interesting in taking a picture of a picture or a page in publishing as "art" you created?

It is not clear to me what your goal is based upon your question.
Could you provide more background information?
Customer: replied 3 years ago.

Yes, I am taking a picture of the page. Its part of a bigger picture. The open book takes up about 1/4 of the page.

Thank you for your response. Will a person be able to recognize and read the words on the page? How many pages is the book?
Customer: replied 3 years ago.

Yes they will be able to recognize and read, but it is cropped, not the full page.


Do you have an email where I can attach a picture to show you?


 


I work for a new food magazine. The picture is for the cover of our summer issue. The Art of Eating by M.F.K. Fischer is a classic food writing and memoir book. We want to also give attribution to the book inside.

Thank you for your response as I now have a better understanding of your idea. You may be able to attach the picture through this medium but the site does allow me to provide my contact information through its medium.

Generally speaking, you would probably fine because of what is deemed the Fair Use Defense under Section 107 of the US Copyright Act which is cited below but attributing the work would be the next best option after express consent.

The nominal use of a page of the work on a magazine cover is not likely to carry any substantial copyright infringement concerns but when in doubt, it is generally a good idea to at least attempt to gain express consent.

§ 107 . Limitations on exclusive rights: Fair use40

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

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

(2) the nature of the copyrighted work;

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

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

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Customer: replied 3 years ago.

Hi Wilton,


 


I don't really understand your answer or the case law that you cite. Seriously do they purposely write it so that was don't understand?


 


Can you show you the photo? My email is bobbilinstudio at gmail.


Do you have an email or website? Can I contact you by phone? I feel like it will really make sense quickly once you see it.


 


thank you, Bobbi

Customer: replied 3 years ago.

Hi Wilton,


 


Please note that our magazine is being produced for sale and consumption. We need to eat!


 


The publisher of this first edition does not seem to exist anymore, but there is another publisher, Wiley, that seems to hold the current copyright.


 


Do you think that we will run into any copyright infrindgement b/c its an old edition?


 


thank you, Bobbi


 


 


 


 


thank you, Bobbi

Thank you for your response. The simplest way to understand is to review each element of Section 107. For example, the purpose and character of the use would be utilizing the image for a magazine cover.

 

The nature of the work is a photo of the inside page of the book. The amount and substantiality of the work is one page from the book, and the potential effect of the use on the book is that it may create more value for the book because of the indirect promotion of the work.

 

Based upon this balancing review of the elements, an argument can be set forth that Section 107 would defend against you from a copyright infringement claim. Unfortunately, the site prohibits me from providing my contact information. Please let me know if you have a better understanding of my answer.

 

Wiley is very large company with resources so the potential for a claim is there but your use so nominal, it may not be aware of even bother with a claim if your magazine is promoting its book.

Wilton A. Person and 2 other Intellectual Property Law Specialists are ready to help you
Customer: replied 3 years ago.

Wilton,

 

Thank you so much for your response!

 

Basically you are saying that though we can argue that potential effect of use creates more value b/c of or the indirect promotion of the book. And yes, this is completely our intention, we want to paint it in a good light. The whole point of our magazine's editorial content is to provide sources and attribution for our readers.

 

Does Wiley hold the copyright only for the current issue? Or for all? Since my copy of the book was published by The World Pubishing Co. and they do not exist anymore, is there any protection there?

 

thank you, bobbi

 

 

 

You are welcome. Yes, you are correct. It is difficult to say without researching the copyright.gov website. Wiley may have purchased World Publishing Co. and all of its assets including the copyrights.

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