Does reducing image size or quality alone strengthen a fair use defence?
Probably not. From the Chilling Effects FAQ:
"It is more likely that a court will find fair use if the defendant's
use of the image advances a purpose different than the copyright
holder's, rather than merely superseding the object of the originals.
For example, the Ninth Circuit found there to be a fair use since the
displayed [thumbnail] images were not for illustrative artistic
purposes, but were rather used as part of an image search engine as a
means to access other images and web sites."
Case law suggests that, with images, size is less important than the reason for their reuse. Using a smaller version of the image alone will not necessarily strengthen a fair use defence, but using a smaller image in a more creative way that provides value without damaging the copyright holder may improve a defence.
However, from the same page:
"In general, the less of the copyrighted work that is used, the more
likely the use will be considered fair. If, however, the defendant
copied nearly all of, or the heart of, the copyrighted work, his or
her use is less likely to be considered fair."
You might argue that using a thumbnail was using 'less' of the copyrighted work, or you could simply crop a portion of the image. Both may protect you, but copyright cases are judged individually, and I wouldn't be prepared to rely on using a smaller image as my only defence.
Why else might reusing a movie poster be deemed fair use?
One of the factors that the fair use doctrine considers is "the effect of [the] defendant's use on the potential market of the copyrighted work". From the Chilling Effects FAQ:
"This factor considers the effect that the defendant's use has on the
copyright owner's ability to exploit his or her original work. The
court may... consider whether harm to a potential market exists. The
burden of proof here rests on the defendant for commercial uses, but
on the copyright owner for noncommercial uses."
If you're reusing the image for noncommercial purposes, the copyright owner has to prove that your use caused them harm. If you're using the image for commercial purposes, it's up to you to prove that it did no damage. (In the US, at least.)
One reason that reusing a movie poster may fall under fair use when included in a review or news piece is because it likely causes no harm to the copyright owner. Note that this alone isn't necessarily enough for a watertight fair use defence, but it may strengthen your case if no damage has been done to the copyright holder or their ability to reuse the copyrighted work (e.g. it is not a vicious parody that renders official reuse of the source image unthinkable).
Why are those movie posters still online?
We can now surmise as to why the copyrighted posters are still online:
- The studios haven't seen them.
- The studios have seen them but don't consider their use a violation of copyright.
- The studios have seen them, have issued a takedown notice, and the site owner hasn't responded.
I consider 1 and 2 most likely in this case.
Whose law applies?
A determined company with competent lawyers may attempt to claim jurisdiction to prosecute for copyright infringement under any of the following countries' laws:
- The country the files are hosted in.
- The country the user resides in.
- The country the files were uploaded from.
- The country that issues the domain extension you're using.
Any of these are potential legal attack vectors, and 1-3 may be seen as the place where the copyrighted content was "introduced under the control of the person making the broadcast" (called "emission theory" in British law, with equivalents worldwide).
Hosting the files in Russia, uploading them from Sweden, living in Canada, and using a dot com domain, for example, will not necessarily protect you from prosecution in the US. It might make prosecution more complicated than if you hosted, lived, and uploaded from the US, though.
What can you do to reduce the chance of prosecution when reusing images?
- Don't use copyrighted images unless you have to.
- If you feel you have to use the image, attempt to seek permission from the copyright holder first. The copyright holder is usually the person or company who created the image unless they have transferred their rights.
- If you can't get permission, be prepared to remove the images if asked (and make your contact details clearly available to make this easy).
- If you're not prepared to remove images, be certain that you could defend yourself if you were called to answer a copyright infringement claim in court.
