A few weeks ago I got an email from Stanley Rowin
a photographer in Boston who claimed that I had to stop using the
photograph posted here or pay him money. I replied that he didn't
understand the nature of the fair use doctrine in copyright law.
What he says or does doesn't matter. This blog today is fully, unquestionably, within the fair use clause because I am discussing this specific photo.
The earlier use was also protected by fair use legal history for three reasons that other bloggers should know. First, I generate no revenue from this photo. If I did, I would probably have to get the owner's permission if I could find out who the owner was (the logo on the photo was never visible to me). Second, the subject of the blog dealt specifically with the image of Thomas Kuhn in the photo. The photo was not used gratuitously, scandalously or carelessly. The subject in the photo was the subject of the blog.
And
third and most importantly, the photo came from a published magazine
(Scientific American) and was authorized by Thomas Kuhn as a suitable
representation of him to be used in public. Which is precisely what I
did.
Since this particular photo is on dozens of sites scanned by Google, which is where I got it, and dozens more scanned by other search engines, I suspect that Mr. Rowin has a big job ahead of him if he is trying to get payment from all of them. If he assumes that most users of Google images don't understand fair use, he may be anticipating a lot of money that isn't there.
The owner of this blogsite, Six Apart, demanded that I remove the photo. No discussion, no legal issue...just a computer generated letter saying 'do it.' I don't have the time to fight this issue and I don't have a dog in this fight (as Karl Rove used to say) so I caved and I'm not proud of it. You can see the disputed photo here.