In our continued effort to keep our fans and supporters what’s going on with us, here is our second response regarding our alleged infringement of a copyrighted image. We take the idea of ripping off an artist seriously and, frankly, are offended that someone would think we’d do it to make money off of someone else’s work.
I believe you misunderstand the purpose of our website. We write about music and entertainment because it is what we enjoy. So, your assertion that we used the image to advertise and sell our products is incorrect. We allow people to purchase advertising via banner ads to support the hosting costs of the site, but it is hardly a “for profit” enterprise. Regardless, the Supreme Court held in Campbell v. Acuff-Rose Music, Inc. – 510 U.S., and the 11th Circuit reiterated in Suntrust v. Houghton Mifflin Co., that commerciality is no bar to finding fair use.
The nature of the work was not to be released as an artistic image for sale or licensing, but for use by DRT Entertainment for use with their audio recording, a recording which we were evaluating in our usage of the image.
Your assertion that we used the image in multiple locations is disingenuous. It appeared in two locations: the review page and a general review page that had thumbnail images linked to the items reviewed. The two other locations indicated in your earlier e-mail were the simply the file locations of those two images, not published locations on the site.
Applying the “reasonable person” standard, it is highly unlikely that someone would browse our website looking for royalty-free images like the one in question. The image was a part of an internationally-distributed CD that was released in 2004. Any online seller who sells the CD would have a similarly displayed image, as would many fan sites and other music review sites, so your assertion that our use “facilitates further instances of infringement” or “negatively affected the potential market” for the image is spurious.
In conclusion, I continue to assert that this use is covered under the fair use doctrine. The image does not replace the original market role of the work, the image is widely distributed in other venues such as Amazon and Wikipedia (so this use does not make it significantly more accessible or visible than it already is), it does not limit the copyright owner’s right to distribute it in any way and is of lower resolution than the original so any copies made from it will be of inferior quality.
It is my sincerest hope that this issue can be resolved without litigation. The image has been removed as a courtesy and in the interest of amicably resolving this matter, despite my continued assertion that its use was both protected and proper and in no way harmed the artist any more than the millions of images used similarly on blogs and review websites all over the Internet.
As such, there will be no forthcoming settlement. The image has no special meaning to this website other than to illustrate the product we reviewed and I simply will not pay the exorbitant fee requested to post a small image on two pages of a website that is operated at a loss by people who have made a hobby of supporting artists.
Larry E. McCloskey II
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