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Are images added to SFF content without attribution violating copyright (merely by not having attribution, e.g. if - merely by adding attribution - copyright is no longer violated)?

Just to be clear, is the following scenario possible under US copyright law:

  • Image X is posted with no attribution, but otherwise fully satisfies 4 factors of fair use as noted by Jeff's answer here
  • Image X is considered a copyright violation due to lack of attribution
  • Attribution is added (nothing else changed)
  • The image is no longer a copyright violation.

If the answer is different between images copyrighted by Wiki-like CC that explicitly demands attribution as condition of reproduction, and generally copyrighted images, please indicate the distinction.

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    For a starting point, check Jeff's answer here. – user1027 May 21 '12 at 21:07
  • @Keen - Jeff's answer doesn't mention attribution that I can see. But it possibly may be an issue with GPL style licensing. Just to be clear - I meant content that already satisfies 100% of Jeff-mentioned 4 points of fair use – DVK-on-Ahch-To May 21 '12 at 21:10
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    If content already satisfies those 4 criteria, then it's not copyright infringement, period. – user1027 May 21 '12 at 21:13
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    @Keen - is that your personal opinion or official SE answer? (if the latter, please post as an answer, if the former, please do so if you can substantiate it with some vaguely legale-sy details) – DVK-on-Ahch-To May 21 '12 at 21:15
  • That is the point of fair use. Read Jeff's answer. – user1027 May 21 '12 at 21:18
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It depends.

If the image is in the public domain, or if it is licensed under terms that allow distribution without attribution, then including it in a post is fine. There aren't many images out there in the public domain; the main sources are old images whose copyright has expired (rare in an SF context) and images made by the United States government or federal agencies (e.g. by NASA). Providing an attribution is still often regarded as the right thing to do, but it is not legally mandatory.

If the image is under a license that allows distribution, but only with attribution, then adding a missing attribution can make an image legal, irregardless of whether fair use applies. These are the terms of the CC BY-SA license that all content on this site is under, as is Wikipedia's text — note that not all images on Wikipedia follow this license.

The third way in which an image can be legal to include in a post is fair use. Invoking fair use is trickier, because the exact limits are defined by jurisprudence. The factors that determine whether a use is fair are:

  • the purpose of the use — a Stack Exchange post is borderline, since the poster does not derive any direct benefit, but Stack Exchange itself is not a non-profit enterprise.
  • the nature of the work — this provision lowers the bar when distributing works that are essentially documentary or designed to be reproduced (e.g. a recording of a historical event, a politician's speech).
  • the amount of copied material — short extracts or reduced-quality reproductions are more likely to be considered fair use than the original work in all its glory.
  • the effect on the work's value: parody and criticism are legitimate, as are in many circumstances copies made for the private use of the copier (such as recordings of a television broadcast intended for delayed viewing), competition is not. A review (whether positive or negative) may legitimately cite small portions of the work that it is reviewing; these portions should be relevant to the points made in the review.

Adding an attribution does not in itself make a use fair, but it can be a contributory factor. The attribution mainly impinges on the last point: if you do not attribute a quotation, then it looks like you are appropriating, and thus you may be competing with the original work that this quotation is from. Adding an attribution makes it more apparent that you are reviewing the work (and perhaps giving an incentive to the reader to consume the original work).

P.S. Moderators are not copyright lawyers. It is not possible for us to have an authoritative opinion as to whether a use is fair. It is easier for us to rule on plagiarism — any material included in a post that is apparently not the work of the author of the post may be considered plagiarism and deleted. Therefore, it is recommended that you always correctly attribute material that you did not originate. In any case, every poster retains all legal responsibility for their content. If a work that you own the copyright to is misused on Stack Exchange, the proper procedure is to file a DMCA takedown notice to the contact address mentioned at the bottom of every page.

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