An Image Problem.

Last week I wrote a blog post which concluded that many self-publishers would probably burn out from the estimated twelve hour days needed to write and successfully promote their books. To illustrate the blog post I used a picture of a crazed Jack Nicholson from The Shining. For those who have not seen it, in that movie Jack plays a writer looking after a near empty haunted hotel. He is suffering a minor dose of writer’s block and ends up typing up a manuscript with “all work and no play makes Jack a dull boy” repeated over and over again.

I used the image of Jack as a subtle illustration of an overworked writer going crazy.

But when I placed a link to the post on Google+ I received a comment asking me if I knew that the image was probably copyrighted. I had not thought of that. I resisted telling the guy who mentioned it to get the stick out of his bum. But after a bit of research, I am glad he pointed it out. 

Copyright Laws

According to the Arts Law Centre of Australia, you can only use someone else’s images in your blog if: 
  • The copyright duration has expired and the work is in the "public domain";  
  •  you have the copyright owner's permission; 
  •   there is sufficient acknowledgement and using the image would be a "fair dealing" for the purpose of criticism and review, parody and satire, or reporting news; or 
  •  the image is "clip art" – sometimes referred to as royalty free work, copyright-free work, shareware or freeware (e.g. Creative Commons resources such as OpenPhoto). 
In the US there is a fair use exception, but not in Australia. “In Australia, the Copyright Act provides "fair dealing" exceptions for the purpose of research or study, criticism or review, parody or satire, and reporting news. When considering whether use of copyright material is fair dealing you need to carefully consider: the purpose and character of the use; nature of the copyrighted work; amount and substantiality of the portion; the effect on the potential market; and whether or not there is an absence of intent to plagiarise.  If you are unsure whether your use of someone else's work constitutes "fair dealing", you should seek legal advice.” 

I do consider the post one of “reporting the news”, where the news is the success and writing habits of writers who self-publish. But the article does not refer directly to the movie The Shining, so if I go back and add a comment to the blog that “we don’t want to end up like Jack in The Shining (pictured above)” does that bring the use of the image under the provisions of the fair dealing exception? I have no idea as there seems to be a distinct lack of legal precedent to go by in Australia and the US. Has any blogger ever been sued by a movie studio for inappropriately using an image from their film? Or do the movie’s producers consider it free publicity?

I have only used one image from an entire movie, sort of like copying a sentence from a novel. .Although I believe it is highly unlikely I would be sued for using the image, I do want to do the right thing. As a writer, I am adamant that a writer’s copyright should be respected, so I should show the same respect for other copyright owners. So from now on, unless I am commenting on a particular film or book, I will refrain from using images from them to pretty up my blog.

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