If I took photos of some copyrighted video game cases and then shared them, I assume it would fall into fair use even though I took the photos, correct me if I am wrong.

Is there a suitable license I can add so that I could share these photos and so could other people in relative legal safety as long as they use it by the terms of the license?

  • Maybe you want to license your works under CC (Creative Commons). The terms depend on what you want to allow (derivatives or no derivaties allowed, commercial or non commercial use allowed, etc.). – Brandin Apr 19 '18 at 8:41
  • @Brandin The issue I have is that I would use the least restrictive license possible but I don't think that would be allowed so I want to know what I could use. – Damien Golding Apr 19 '18 at 8:55
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    If the photos are copyrighted to you, you can license them with whatever license you want. The least restrictive license is CC0. – Brandin Apr 19 '18 at 8:57
  • What's the purpose of the photos? Taking a photo of a game box to advertise it for sale on eBay is very different from taking a photo of a game box and using it to print fake game boxes and sell them. – barbecue Apr 19 '18 at 13:01
  • @barbecue The purpose is to represent stock of second hand items. I wanted to avoid the need for everyone to take almost identical images of the same products. Even if someone claimed fair use, it wouldn't seem fair for someone to take a photo I created of a second hand item and use for themselves, but if this was explicitly stated to be allowed then it would remove the uncertainty. – Damien Golding Apr 20 '18 at 3:01

There cannot be such a license. A license grants rights that you hold to other people. You do not hold any rights to other people's artwork. Fair use in the U.S. is not quite a right that you have, but a defense that you can resort to when accused of copyright infringement. Even if fair use is a right that you have, this right cannot be licensed.

In practice this is a bit more complicated. A photograph of the video game case may range from “reproduction of the cover” over “happens to be in the background” to “highly transformative work that includes elements of the original cover, e.g. as a collage or parody”. So you might in fact hold some rights. But that is first and foremost a legal question in your applicable jurisdiction, and only when that is covered could you consider licensing your rights to other people.

E.g. the English-language Wikipedia makes heavy use of copyright exemptions such as fair use in order to show cover art. They document this with a “non-free use rationale”, that e.g. explains why this image is necessary, and that the use of the original is minimized (e.g. by only showing a low-res thumbnail). So these images are not actually licensed. It helps for this that Wikipedia generally fits under the “for nonprofit educational purposes” fair-use factor. For details of their policies, see https://en.wikipedia.org/wiki/Wikipedia:Non-free_content

  • I was only considering a "reproduction of the cover" scenario. My issue is I have wanted to create a database of photos of objects that may have copyrighted material on them. Any similar databases don't seem to have any licensing information so I assume it is all under fair use. In other words, would a fair use clause with information on why it is fair use be the best alternative? – Damien Golding Apr 19 '18 at 9:15
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    @DamienGolding Database rights are a headache that I'm not familiar with. If you only show thumbnails that's probably fair use, e.g. Google gets away with this. Note that if you aren't publishing from the U.S., then fair use cannot apply. – amon Apr 19 '18 at 9:18
  • Fair use is most certainly not "just a defense". It is a right on it's own. However, it is rather vaguely defined and the only way to definitively determine something is fair use in many cases if for a court to decide. But there are many common fair use cases where you can easily see that many people and organizations have been doing the same for a long time. – Shufflepants Apr 19 '18 at 14:29
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    And for fair use, you should really emphasize that it depends on the use. Take a picture of the game case and share that picture on craigslist because you're selling the game, definitely fair use. Take a high res pic and start printing off large versions of it as a poster to sell. Almost certainly not fair use. – Shufflepants Apr 19 '18 at 14:30

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