Letter help: Fair Use

[Book cover shake down]

I will keep you informed. I have no intention of settling because this is an absolutely marginal case for them and I don't believe there was infringement. Thanks again.

[lucia]

The effect of the use upon the potential market for, or value of, the copyrighted work

I would think the effect of copying the cover of a book on a post discussing the movie  on the potential market for the cover art is exactly zero.  The image has already been licensed for the book cover.  Copies of the book cover appear in ads for the book in scads of places. (Amazon. Links to amazon. other book stores etc.)  It is possible that in future someone might like the image. But since it already appears as the cover of Freakonomics, that person would either (a) decide to not use it because it appeared on the cover of Freakonomics or (b) use it because it appeared on the cover of Freakonomics.  In both cases, the fact the the cover of the book appeared in a blog post  or similar would be discussing Freakonomics itselfirrelevant to whether someone would want to license the image for some other use.

So... zip. 

The analysis might be different if someone was selling t-shirts with the image or selling a second book with the image and so on. But really... there must be some sort of implied agreement that people can show pictures of the book when discussing the book or movies about the book!

[Book cover shake down]

Thank you Lucia - agreed. I believe I was caught up in their image matching algorithm incorrectly in this case - i.e. they would not have intended to send the letter if they realized it was referencing the book. I'm sure they've sent similar letters to other websites that are discussing the book/movie. That's not to say they will back off, but it does not worry me.

[Oscar Michelen]

Sorry it took so long for me to see this post and chime in. You would have a strong fair use defense for the reason set forth in the previous posts. Fair use is a tricky issue but because you were specifically critiquing and reviewing what they were complaining about, you would likely be covered. Fair use is an affirmative defense meaning it would be your obligation to prove it is applicable but don't worry this will never be put into suit so this whole discussion is purely academic. 

[Book cover shake down]

Thank you Oscar. I wonder what the standard time for them is to fire back a response/denial of my letter, It's been over 6 weeks now since I sent a letter claiming likely fair use. Maybe for once they have backed off...

[stinger]

I hope you are right, but personal experience tells me to advise you as follows.

Don't count on it.