Bothell, WA asked in Copyright for Washington

Q: Hi I'm a student and I'm working on a project about copyright laws, and I'm hoping you can answer a quick question?

I have been given a scenario involving someone who creates a concert poster using a NASA Image called Reisman's Self Portrait. He displays this poster around town, social media websites, and personal websites. Would this be infringing on original copyright or would this be considered fair use?

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1 Lawyer Answer
Will Blackton
Will Blackton
Answered
  • Intellectual Property Lawyer
  • Raleigh, NC

A: Under 17 USC 105, copyright does not extend to any work prepared by an officer or employee of the federal government as part of his or her official duties. This provision doesn't prevent the federal government from owning copyrights either by assignment or pursuant to work-made-for-hire agreements with independent contractors.

The first thing to consider in assessing whether any copyright is infringed, before you get to a fair use analysis, is whether there is a copyright to infringe at all. Reisman's Self Portrait was taken by a NASA astronaut while in outer space.

As for fair use, this is a notoriously fickle doctrine that depends a lot on the facts and circumstances of the individual case. I'm not sure there is enough information here to tell you where on the spectrum of fair use this situation would fall. In determining whether the use made of a work in any particular case is a fair use the factors to consider 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 f 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.

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