As we told you yesterday, we have recently been notified that we were infringing on a copyrighted work and are liable for thousands of dollars in damages – an assertion we deny. We also said, we’d keep you all posted on where things stand with us. With that in mind, here is our official response:
After reviewing the claims in your copyright infringement letter, I have concluded that, contrary to your assertions, our use of your copyrighted materials is plainly protected by fair use. 17 U.S.C. § 107.
Factor 1: The purpose and character of the use is for criticism, comment and reporting.
The first fair use factor examines the purpose and character of the use. The image in question is the album cover for Seven Mary Three’s “Dis/Location” recording and was used in conjunction with a review of the album. The secondary image was a thumbnail image linked to the review.
Factor 2: Our use causes no harm to the market for the original work.
The fourth fair use factor examines harm to the market for the original work, but only harm caused by substitution in the market or satisfaction of the desire for the original work. The original image was not available as a standalone item, so there has been no replacement of or diminished desire for it in the marketplace through our use. Further, our images on the website are both smaller and of lesser quality, suitable for website usage but hardly replacing the original photographic quality work.
Conclusion: The image use is clearly protected by fair use and the First Amendment principles undergirding fair use.
After carefully reviewing your claims, and the fair use factors, it is plain that our usage is protected by fair use. Its usage is for criticism, comment and reporting and it does not operate as any kind of substitute for the original work.
While I believe that our usage here is clearly covered under the fair use guidelines, I have nonetheless removed the indicated images. I hope that this will resolve the issue. Moving forward, the courtesy of a simple cease and desist letter should a similar situation arise would be appreciated.
Larry E. McCloskey II