Question:

You are using an image of ours that is “Copyright,” but you have labeled it as “Public Domain.”

Answer:

There are essentially two reasons this could have happened:

Scenario 1: Your image is a non-creative photograph of a two-dimensional work of art in the Public Domain. In this case, I act in accordance with the standards of the Wikimedia Foundation, Inc. (WMF):

To put it plainly, WMF's position has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain. If museums and galleries not only claim copyright on reproductions, but also control the access to the ability to reproduce pictures (by prohibiting photos, etc.), important historical works that are legally in the public domain can be made inaccessible to the public except through gatekeepers. -Link

Moreover, as a U.S.-based organization, I adhere to U.S. copyright laws:

There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required for copyright protection. "Elements of originality . . . may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved." But "slavish copying," although doubtless requiring technical skill and effort, does not qualify. As the Supreme Court indicated in Feist, "sweat of the brow" alone is not the "creative spark" which is the sine qua non of originality. It therefore is not entirely surprising that an attorney for the Museum of Modern Art, an entity with interests comparable to plaintiff's and its clients, not long ago presented a paper acknowledging that a photograph of a two-dimensional public domain work of art "might not have enough originality to be eligible for its own copyright.

Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)

Scenario 2: It is a genuine mistake that I will immediately correct upon notification. In such cases please contact Admin@BilgeBitig.org.

Question:

You are using an image of ours that is “Copyright,” please remove it.

Answer:

Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

2. Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.

3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.

4. Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-bycase basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

U.S. Copyright Office Fair Use Index

Purpose and Character of the Use: BilgeBitig's virtual database for both Turkic and Iranic Material Culture is educational, non-commercial, and transformative in nature. In fact, a primary purpose of both our databases is to highlight, publicize, and stimulate interest in a collection's works of art which they are comprised of. Moreover, our databases place these artworks in a new frame of reference, thus conveying information and illustrating themes and ideas that are different from those expressed in a single work of art. Our curation, placement, and commentary that accompanies each object adds to the database's transformative nature.

Furthermore, our databases are also preservational in nature. We view it as our academic duty to ensure access to aspects of our cultural heritage for future generations. In this sense, the preservational nature of our databases is undoubtedly beneficial to the public and plausibly, strongly transformative.

Nature of the Copyrighted Work: The only copyrighted material that is made available on BilgeBitig.org are the images of artworks that have long since passed into the Public Domain and are of utmost importance to the preservation of our cultural heritage. These images are ultimately factual works in nature.

Amount and substantiality: Given the various purposes of our database, the amount of any artwork used is appropriate to the purposes. For the purpose of preservation alone, preserving only parts of any given work would be inadequate.

Effect of the use: Each object in the database is accompanied by the appropriate citations. Where possible, each object links back to its source. Thus, both the object's owner and the copyright holder of its image are credited. If anything, our databases not only inform the public of any given object's existence but also enable them to reach out to the copyright holders of the images, leading to increased interest in the object and the collection it belongs to. Furthermore, all downloads are disabled. If a user wants to download the image, they are free to visit its source to do so.