Q: I can't find the Copyright owner does this mean it's fair to use?
I make short videos on YouTube about Classic Hollywood stars (1920's-1940's) and my videos are under fair use for educational purposes. I don't monetize from them. But, I had considered selling merchandise to make a small profit to donate to museums and historical societies that feature a particular star. I have some images in mind and I reverse-searched for them in Google, but the only place that comes back is usually Pinterest. There is no searchable owner. Is it fair to use? Also, I personally own images of 1930's stars, such as movie stills, publicity photographs, original posters and lobby cards, magazine clippings and etc. Because these are physically in my possession and I, technically, "own" them - does that give me the right to reproduce them?
A: Many interesting questions. Let's see if I can provide information concerning each.
First, just because you cannot find who owns the copyright in a work does not mean you can use it without permission. You may have to dig deeper to find out who owns the rights. One place you might check out is the National Archive.
Second, you have reached a conclusion about whether your videos would qualify under a "fair use" educational qualifying theory. Without testing your conclusion by having an independent person review the use, you still have exposure. Financial gain is not the only test applied to see if a use is a Fair Use.
Third, owning the book, photograph, poster, etc., in and of itself does not give you rights in the copyright in the work. Rather you own the particular item. So it is not a given that you can make copies of the items you own without infringing the underlying copyright rights.
Fourth, if any of the art items are sufficiently old enough, the copyright may have expired. Currently, in the case of individual authors, it is the life of the author plus 70 years. You would need to research whether any of the art is now in the public domain.
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