[pbhjpbhj]

Does he need a license to use those images in Reunion (or wherever his server is)? It looks like it could be a fair-use under USC too? Styling yourself as DeNiro in Taxi Driver might even class as parodical and so be an allowed use?

But your general point in your first clause stands.

[ColinCera]

This is not fair use. No court has ever held that it's fair use to reproduce copyright images because you think they look cool, you think they're funny, you think they illustrate some point you're trying to make, etc. And using an image of DeNiro as your avatar does not even begin to approach a legally acceptable form of parody.

Just because hardly anybody ever gets sued for using copyrighted images as avatars, as humorous blog illustrations, and so on, doesn't mean that they couldn't be sued — and the copyright holder would unquestionably prevail.

[pbhjpbhj]

Using the US courts 4-factor analysis where in particular do you think this use - of a low-pixel screencap transformed as an avatar - fails?

Do you happen to know the jurisdiction applicably here, as it's behind Cloudfront the location of the servers are hidden. Clearly there's the .re domain. It might be considered that Cloudfront's proxying causes a US jurisdiction claim of infringement to be pertinent no matter where the files are hosted, but that moves rather to my point that it's not a simple analysis and so the vilification of the alleged infringer seems unwarranted at this time.

>No court has ever held that it's fair use to reproduce copyright images because you think they look cool //

Low-pixel copies of images have been allowed for various purposes. Are you saying this particular issue has been addressed by the courts, I'm not aware of it, could you post the details? Thanks.

[__P]

"Fair-use" is a legal defence, when you get sued. Just like 'self-defence' is a legal defence if you murder someone.

It does not mean you have the right. (Like in countries like Korea, or Australia, where you do have the right).

[dragonwriter]

US Copyright "Fair Use" is basically a statutory exception that closely follows the parameters of what courts found were Constitutional limits on copyright restrictions imposed by the First Amendment free speech/free press rights, so, no, despite the fact that it is procedurally a statutory exception, it also does reflect the existence of a more basic right that the statute would have no power to infringe even if it didn't encode the exception explicitly.

[pbhjpbhj]

I'm sorry but you're quite wrong. Fair Use under the USC is an exception allowing, primarily personal [but by no means exclusively], use of otherwise copyright material. Eg fair-use covers limited educational exceptions, incidental infringements (you take a photo and it happens to have a copyright protected work in that isn't the feature of the image), etc., etc..

Fair Use is a legal defence against a claim that you have tortuously infringed someone's copyright. The reason it works is because under Fair Use exceptions there is no tort committed, that is why you get off. It's _not_ the court saying "well you committed a tort against them but it was only a small one" it's the court saying that under the USC there has been no tort committed.

If someone died whilst you were defending yourself, you don't "get off" it's ajudged to be (and considered in the relevant code or statute) acceptable, you didn't murder them. If you murdered them and you win on a legal-defence of "self-defence" then there was a miscarriage of justice.

There are many good guides, http://copyright.columbia.edu/copyright/fair-use/what-is-fai... - note in particular the penultimate para on balance. Even some commercial uses are judged "fair use" just as educational or library uses aren't always allowed. For example Google are allowed to show thousands of DeNiro images on their site under a fair use exception (eg http://en.wikipedia.org/wiki/Perfect_10,_Inc._v._Google_Inc.).

IMO the de minimis use of single, low-pixel size, established cultural images for avatars where there is no actual commercial harm to the image maker and perceivably no commercial gain in the meets with the balanced consideration of the 4 characteristics of fair-use material.

[I've no idea where the page is hosted nor the copyright system in place in the Reunion islands (which may or may not be relevant), do they use French law, are they signatories to the Berne Convention or TRIPs???]

[__P]

Apologises, I was a bit flippant, I merely meant fair-use wasn't a 'right'. It was instead a 'defence'. Saying it was like self-defence, was incorrect. You are correct.

But my point is, it is unlike other countries where it is a right (i.e. you cannot be taken to court at all for it).