Benefit to Pantozzi or the Times are explicitly not what Fair Use is about. In fact, Fair Use is the recognition that there are times that use of a copyrighted work is “fair” to “use” in spite of the exclusive rights of the copyright owner.

Besides, the odds of Dave fighting over this are extremely low. He’d get a cease & desist, he’d comply with it and then spend the next six months whinging about how evil lawyers are.

His original link went to the obit, which credits the “John Pantozzi collection” for the image. He has since used it numerous times, dropping it into weblog posts with the macro “jew wrestler”. None of these credit or link to Pantozzi.

Is that really in the spirit of fair use? There’s no benefit to Pantozzi or the Times in Winer’s frequent use of the image, because no credit or links are given.

For laughs, let’s keep an eye on Winer’s images and give them the credit he denies the creators. Sooner or later he will leech off somebody who goes all Lane Hartwell on his ass, and we can see who’s correct.

To clarify this comment, it’s not the second step of the fair use legal analysis. Fair Use is an affirmative defense, which means that once the plaintiff makes out his prima facie case for infringement, the defendant bears the burden of raising and proving his defense.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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—

The four factor test is how you determine if a use is something LIKE “criticism, comment, news reporting, [etc]. . .” it’s not the second step of the legal analysis. The key phrases here, are “such as” — which tells us that the following uses are just examples of the kind of things allowed — and “In determining” — which is the statute’s way of saying “We’re not using the coffee-house definitions of those words, here’s how you figure it out.”

Put another way, the “criticism, comment, [etc]” lines can be thought of as something of a purpose statement for the statute. The real meat is the four factors.

Nothing in the statute, nor in the case law as far as I’m aware, moves the factor test after some sort of other determination of fair-use-iness.

As to the whole “systematic” argument, it doesn’t fly. A fair use is a fair use. If a professor were sued for showing a movie clip at the beginning of every class to highlight the points he was to be making, that would be at least as “systematic” as Dave’s little pictures, but it would also be picture-perfect fair use.

That argument is like saying “You have the right to say whatever you want… but you can’t use it too often.”

Further, even if you continue to insist that your interpretation is the correct one, I encourage you to reconsider your definition of the word “commentary” and make a note that the statute doesn’t specify what that commentary must be ON. In other words, there’s nothing that says that the comments must be on the copyrighted work… Dave uses the images as a form of visual commentary on his work and the things he writes about.

So, either way, he’s still (in my opinion, this is not legal advice) quite squarely in fair use land, as despicable a person as he may be.

He’s a leech. He could draw upon free clip art libraries and thousands of Creative Commons photos, but instead he runs stuff without permission or credit and rationalizes it as “copyright radicalism.”

Sorry, but Dave’s uses are very much NOT fair use. Even where your own work is non-commercial, you cannot simply take other people’s graphics without permission for no other reason than to make your web site look pretty. If that was the case, you could simply take something from, say, Getty Images for the same purpose – something which I’d advise you NOT to do unless you want their legal department on your ass.

Holy Strawman Argument, batman!

Getty’s whole business is licensing the rights to images. The fact that Winer’s work is not commercial is not dispositive, but it is certainly one factor. Take a look at that four factor test (and keep in mind that this is US Law):

Purpose & Character: Non-commercial. Advantage: Dave. Amount of original: Varies, but typically very small proportion at a very scaled-down size. Advantage: Dave. Nature of the original: Varies, almost universally already-published. Advantage: Dave. Effect on market: Virtually zero. For one thing, there is no market for most of the images Dave uses. For another, Dave’s use of the images hardly supplants the distribution mechanisms used by the copyright holder.

In sum: you have to work very hard for even one factor of the test to go against Dave, let alone enough of them to eliminate the fair use defense. It would certainly go other ways in different countries, but here in the US, I can’t imagine what twisted logic a court would need to find Dave’s uses to not be “fair use”.

In this instance a thoughtful lawyer has stated that the re-use of Lane’s picture in a derived work… (a picture that was published on Wired’s website) could be used as an artifact of our world in a video. The picture appears for 1 second in a hand-made non-commercial music video that lasts 164 seconds. :anes take-down was based upon legal advice as well… so the net is moving towards lawyers, and money as people make their living “because of it” and not from it (as Doc is fond of advising).

Dave’s use of images is also without financial benefit and the images represent a cultural icon and could meet the “fair use” guidelines. Dave also makes money because of his blog and not from it (in general terms… for him that’s almost a credo). He made a lot of money from blogging software that pinged his “web service” (weblogs.com)… $2.15 million reportedly. Some of which he had to share with the stakeholders of UserLand… alledgedly. Money that fell from the sky… needless to say he’d like to host another essential “service” and have the funds to host his web properties for the millenium.

I agree with a lot of Dave’s views since he and I share similar political leanings… children of the 60′s and reformed socialists.