Discussion:
Based in South Dakota
I'm the author of a social commentary Blog, . I usually open with commentary on a given topic or article, followed by the actual article so the reader can review my source material.
With that, on 17 August I wrote a piece that slammed "McMansions," i.e. huge homes. Furthermore, I cited the Wall Street Journal and used a photograph of one of these enormous homes to back up my argument.
Well, wouldn't you know the Contractor who built the home in the picture sent me a nastygram yesterday for "wrongfully using their intellectual property." And want me to remove it.
Balderdash, I say. I've reviewed the 4 points of fair use and I believe I met all of them. It's social satire, noncommercial, and I seriously doubt my little site on the web will damage their company in any way.
But before I fire off a scathing retort, I figured I needed my ducks in a row.
Here's the link to the post for your review:
Much obliged for your time,
James D. Fielder
Answer:
Balderdash, I say. I've reviewed the 4 points of fair use and I believe I met all of them. It's social satire, noncommercial, and I seriously doubt my little site on the web will damage their company in any way. Fine. But remember, "fair use" is a defense to a charge of copyright infringement, not a right you can assert to avoid getting sued. If he decides to sue you, you can raise "fair use" as a defense -- but you can't simply say "fair use" and theat will keep you from getting sued.
And whether or not his company is damaged in any way is irrelevant from a copyright perspective -- it would, however, be relevant from a defamation perspective, if he were suing you for libel or slander. For copyright, use of the copyrighted work itself is where "damages" come in, and if the work (the picture, I assume) has a registered copright, he doesn't even need to prove damages at all -- the court can award "statutory damages."
Now, all that said, based on what you've written, it's seems unlikely that he would sue based on copyright infringement -- but if he does, remember "fair use" is a defense you raise in your answer, and not a way to fend off lititgation in the first place.