Flickr Group Uses Photos for Project = Fair Use?

As previously discussed in my article on fair use and in my blog entry regarding Fairey’s use of the Garcia photo for his Obama poster, fair use is sometimes difficult to identify. Many factors are considered for the ultimate determination of fair use. While one of those factors is related to issues such as whether the user is making money from the use, the use is for commercial purposes, or the use is by a non-profit educational institution, those criteria alone do not automatically make a use qualify as “fair.”

Take for example, the Flickr Group that is a “CD Cover Meme.” There, the members are asked to make a CD Cover using several random items, such as an article title, quotations, and a photo from Flickr. The exercise appears to be only a creative challenge and that nothing further is done with the result except to share it on Flickr.

But does such use of the Flickr photos there qualify as fair use or are the covers an infringing derivative work? Again, only a court can tell us for sure and it seems that the Flickr group is not concerned. Further, if the CD Cover project also included a complete copy of a recorded song, would the analysis change? How would the creator of a CD cover respond to a music group’s use of the creator’s cover without permission?

It seems that if the Meme’s rules were revised to use only a Flickr photo with an appropriate Creative Commons license (you can search specifically for them from the CC website), the Flickr group members could satisfy their creative desires while not potentially stepping on the rights of other creatives.

Thanks to Jim Goldstein for submitting this topic.

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