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1. Yes, because it does not acknowledge the source and it does not have substantial alteration

2. Yes, because it belongs to news reporting. It will be more legitimate if Magazine B uses a lot of words to describe the photo. Although Magazine B did not acknowledge Magazine A, it can claim that it does not know the original source of Leslie Cheung’s photo and it is not reproducing Magazine A’s picture, it is reproducing the person’s reproduction.

3. Depends on the loss to Magazine A caused by the copying and the sales of Magazine B (if it is a commercial magazine)

if it is for sale: around hk$5000
if it is not for sale: around hk$3000

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1. Hard to define, but to some extent, yes.

Unauthorized reproduction of the copyright work

Without any acknowledgement

Not fair in proportion because it's the most important element of the larger photo

Importance of Leslie’s photo → if the photo taken down, lost its purpose

Author not yet dead

2. They can use it as a defence

Fair dealing refers to private study; news reporting, review or critique, library, judicial or legislative proceedings....

Magazine B used the photos taken by the diehard fans without knowing the copyright of the small photo belongs to Magazine A. Under such circumstances, magazine B would credit the diehard fans instead of Magazine A and thought that the copyright belongs to that fans. Here, Magazine B published the photos for news reporting.

They did have the intention to credit the owner of the photo, they just did not credit the correct person

3. If being sued: Paying one-time license fee to settle (or maybe double the fee)

Solve the case by not going to court using all means possible

Losing the case will cost them much more

Damage on reputation

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1. Yes, without the old picture, the new picture would have no meaning

highly dependent on the small picture, the gist

the smaller picture takes up a large proportion as comparing to the whole picture

not authorized by magazine A

2. Yes, as it is a form of news reporting

the news report needs to describe a fan is using the photo for the purpose

3. How much should be paid

lower than that of Diana

although a deceased local well-known artist

no explicit news value

depends on a one-off license fee

# data[].attributes.body
1. Yes, because it does not acknowledge the source and it does not have substantial alteration

2. Yes, because it belongs to news reporting. It will be more legitimate if Magazine B uses a lot of words to describe the photo. Although Magazine B did not acknowledge Magazine A, it can claim that it does not know the original source of Leslie Cheung’s photo and it is not reproducing Magazine A’s picture, it is reproducing the person’s reproduction.

3. Depends on the loss to Magazine A caused by the copying and the sales of Magazine B (if it is a commercial magazine)

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1. Is the creation of this larger photo by a diehard fan of Leslie Cheung a copyright infringing act? Why?

YES

unauthorized from Magazine A

without acknowledgement

cannot apply the Fair Dealing as defense (no acknowledgement, not small proportion)

2. Can Magazine B use fair dealing as a defence?

NOT really

met the purpose of news reporting photo

as fair proportion of the whole report (proportion of photo vs news report)

it has already acknowledged that diehard fan (the only source of original the magazine knew) BUT the magazine did not try its best to find the news source (assuming the magazine got the authorization from the fan, it could easily ask the fan for the source of the photo)

3. How much shall it offer to settle the matter

market price for license fee

not much since the photo is many years ago already can’t gain much revenue from it and in nature just like a stock/archive photos used by the fan and the fans is not using it for business

discuss with magazine A for the exact amount

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Q1 Yes, it is a copyright infringing act
Author (ie the magazine) hasn't died
100% of amount use (not fair in proportion)
No acknowledgement of them magazine
Minor change (outside of the pic) while keeping the original picture unchanged (ie. by definition: strikingly similar)

Q2 No, magazine B can’t use fair dealing as a defence
- Although fit 10 copyright activities: News reporting
- Not knowing (smaller photo if it came from magazine A) isn't a good reason in explaining
- used 100% of amount of the picture (not fair in proportion)


Q3 
For Magazine A: One-time license fee instead of sharing profit (according to Faye Wong case?)
Reference to how much netizen should pay for the one time use, and then multiply them by 2-3 times

# data[].attributes.body
1. Yes. The photographer made no substantial alteration, did not seek authorization, acknowledgement, and did not fulfill the 7 criterias for fair dealing, especially he/she is reviewing the photo by quoting 100% of the original creation, i.e. a complete reproduction of a copyrighted item.

However, magazine A may decide whether or not to sue the fan (since the fan is engaging in a reminiscing activity but not making profits, and the scale of the fan account is not big enough, so Magazine A may not be getting enough compensation)

2.  Criteria to use “Fair Dealings” as defence:

Critique / Review / Comment

The nature of the copyrighted work: News reporting << Does not have to obtain consent from copyright owner, which is what magazine B might be benefiting from

Our argument / confusion:

Yes

Change of copyright owner (from Magazine A to the new photographer, i.e. the fan)

Acknowledgement in text = fair dealing when the author is recognized (so it depends on whether magazine B cited the photographer, i.e. the fan)

The public is still interested in the event as Leslie Cheung is reminisced by many (although not really a matter of public interest)

The proportion is necessary (to illustrate the event, the photo has to be included to show what the “footprint revisit” means - fair proportion and aligns with purpose of reporting)

3.

Depends on the “news value” of the photo (just a daily photoshoot of the star - not really valuable in “nature”?)

But it also depends on the scale of magazine A (target audience, market size etc.)

Another approach to deal with the matter: Republish / Collect all magazines distributed and issue a statement of apology

Market price: ~10,000hkd

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1.
Yes
Not authorized by magazine A
Not much substantial change
Not included in the 7 purposes of fair dealing

2.
No
Not knowing the identity of the author doesn't mean the act should be regarded as fair dealing
No substantial change on copyright photo
Potential market value due to portrayal of Lesile Cheung

3.

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1.
侵犯

a.照片不屬於small proportion（精華片段）

b.沒有substial alteration（小照片）

c. 不屬於fair dealings（發在粉絲群中）

d.張國榮去世不足50年

e.沒有和版權方negotiate

不侵犯

a. 目的在於致敬，緬懷，且小照片比例較小，

b. 是recreation，不是reproduction（並非單純展示而進行了二次創作）

c. 根據版權法第七十七條，一件版權作品偶然被包含於其他作品中並不構成侵犯版 權。因此在報章圖片或廣播片段的背景中包含版權作品並不構成侵犯版權。

2. 可以

a. b認為作者是粉絲，而不是a雜誌，所以b雜誌已經註明了作者及出處

3.

a. B應該與A逕行協商，商定一次照片使用應付版權費,或通過B刊登後雜誌銷量逕行估價賠付

b.發表聲明致歉，表明工作疏忽而非刻意為之