A calculated risk

The copyrighted(?) image

So reader Sharon Meeker took one look at the blog yesterday and came away puzzled. “You’ve done a number of articles on copyright and use lately,” she said. “Could you explain how you can use the “get out of jail free image?” Fair use? Out of copyright?”

Great question — and the answer may not be quite what you expect.

The fact is, The Legal Genealogist took a calculated risk in posting that image yesterday, and it points up the balancing act that we all have to go through each and every time we use an image that probably isn’t (but might still be) protected by copyright. Because the bottom line is, I’m not 100% absolutely certain that the image is out of copyright. I believe it was, but I understand that I could be wrong.

The key to my analysis was the copyright date given on this image. As you can see in this somewhat-fuzzy blow-up of the copyright notice, it was copyrighted in 1935. Under the law applicable to anything published in 1935 with a copyright notice, that copyright ended 28 years after publication unless the copyright was renewed by filing an additional registration with the U.S. Copyright Office and paying an additional fee.1

Now the vast majority of initial copyrights were never renewed. One estimate is that as little as 15% of those copyrights were never renewed.2 But it would sure be foolish to bank on non-renewal with a game like Monopoly that remains both popular — and copyrighted — today.

Still, the question isn’t whether the game is still protected by copyright. The question is whether that particular card image from that particular 1935 card set is still copyright-protected. And that’s where the calculated risk started to come in.

Over the years, the game cards have been revised and updated. Each time a new set was issued, the company appropriately claimed copyright for the new set. But I couldn’t find any evidence that the copyright on the old sets had been renewed after the new sets were issued and in use.

It certainly isn’t the easiest thing in the world to check to see whether a copyright has been renewed — the records exist in an enormous card catalog in the U.S. Copyright Office at the Library of Congress in Washington, D.C. There are serious efforts underway to digitize the records so they’re easily searchable, but that hasn’t happened yet.

So the fact that I couldn’t find evidence of a renewed copyright on the old set is no guarantee that it wasn’t renewed. I could be wrong in my conclusion that the copyright on that particular card has expired.

So what about fair use as a possible defense if I am wrong? The fair use doctrine is set out in federal law at 17 U.S.C. § 107:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means …, 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.3

Looking at these factors candidly, it’s nowhere near a sure thing that this would be held to be fair use. It’s certainly arguable, but not a slam dunk by any means.

Oh, for sure, this is a nonprofit blog (BOY is it nonprofit…), we’re only talking about one card from the entire 1935 card set, and there’s little if any chance that my use had any effect on the potential market for or value of the copyrighted work — and that’s usually considered to be “the single most important element of fair use.”4 But the nature-of-the-work factor also has to be considered, and that weighs against a finding of fair use: it’s a creative piece, and that gets more protection than, say, a fact-based book.

That’s why I wouldn’t feel comfortable relying solely on fair use and probably wouldn’t have opted to use the image if I wasn’t also reasonably convinced that the 1935 game cards are out of copyright.

But even those two in combination are no guarantee. What if I’m wrong? There’s always a risk involved… unless you do one thing that will give you complete protection whenever you really really want to use an image and you’re just not sure of the copyright status:

Ask for permission.

Even if you think it’s probably out of copyright, it doesn’t hurt to ask. In my experience, you almost always get permission (or a gentle “you don’t need out permission, it is out of copyright”). And getting permission means never having to say you’re sorry.

So why didn’t I do that here? I did. But I didn’t get an answer before the blog piece was scheduled to run. So I took the calculated risk that I really didn’t need permission at all. I think I’m right. I hope I’m right. And I sure hope I do get permission (and forgiveness) if it turns out I was wrong.


 
SOURCES

  1. U.S. Copyright Office, Circular 15a: Duration of Copyright, PDF version at p. 2 (http://www.copyright.gov : accessed 17 Oct 2012).
  2. See Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” note 8, Cornell Copyright Center (http://copyright.cornell.edu/resources/publicdomain.cfm : accessed 17 Oct 2012).
  3. “Limitations on exclusive rights: Fair use,” 17 U.S.C. § 107.
  4. See Harper & Row v. Nation Enterprises, 471 U.S. 539, 566 (1985).
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9 Responses to A calculated risk

  1. Doug says:

    Very interesting posts (this and yesterday’s) both. I did a quick Google search for: and found that you’ve got company using that card. Check out and you’ll see that same 1935 card image. Is that where you found the image? Or are you holding onto a vintage Monopoly game? Keep on blogging – I really enjoy your posts, follow-ups, and the comments of other readers!

  2. Midge Frazel says:

    I would claim fair use for teaching purposes. You are teaching all of us about the use of copyright.

    • Judy G. Russell says:

      The answer to that would be that the lesson can be taught without using the image, Midge. That’s why copyright can be very very tricky.

  3. Sharon Meeker says:

    Thanks very much for this article. Frankly, I thought the image was more recent than that, since I remember the game from when I was a child (which wasn’t THAT long ago!). I suspect that the image I remember might have been a slightly “updated” one from the 1935 version.

    Your comments also give me a better grip on “fair use.” Thanks again.

  4. Keith Bouldin says:

    Thanks Judy for a giving us a good example, explaining your reasoning, and asking for permission.

    So if you’re wrong … I assume nothing worse happens then a letter from Hasbro, or their current owners, asking [telling?] you to remove the copyrighted image or they will take legal action?

    • Judy G. Russell says:

      No, if I’m wrong and they’re upset, they could very well sue me. I would hope they wouldn’t, that they’d only ask me to take the image down, but in any one of these analyses, the possibility of being sued has to be factored in. That’s why it’s a calculated risk — and why I don’t recommend it as a matter of routine.

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