out of print board game - scan of board permitted?

Question

There is a simple children's board game that is apparently out of print. May I make a color scan of the board and include it in a scholarly article?

May I include the scan in a blog post?

I want to include a visual and description of the basic game, and then describe variants that help a special learner with basic math skills.

I acquired this game from some second hand store. It is in English but the box says it was manufactured in Spain in 1985.

The name of the company is "Sallent Hermanos".

What might make this a little tricky is that the board features Disney characters.

The box says copyright-symbol 1985 Disney. It also displays "Educa". I tried a search, among other places, at http://www.educaborras.com/ -- nothing coming up anywhere.

Answer 1

First off, the work is almost certainly not in the public domain in the US. Works are generally copyrighted upon creation or publication, but in this case the work was probably explicitly copyrighted. The fact that a work is out of print generally has no bearing on its copyright status.

US copyright law changed several times in the last century. The 1985 copyright year means the board game was probably published then, and it's since it's a Disney copyright it's a corporate work, which would give it a copyright term of 95 years, meaning that it should be covered under copyright until 2080. See this factsheet on copyright from the US Copyright office.

Works Created on or after January 1, 1978

For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter

International laws will vary, but many countries adhere to the Berne Convention, which means that international laws will probably be at least similar. Either way, the work isn't very old from an intellectual property perspective.

Fair use is an exception to copyright law that allows portions of copyrighted works to be used without permission or compensation in certain circumstances; academic or scholarly use is one of them. Generally, your use of the work has to be the minimum necessary amount to serve your purposes, and cannot harm the commercial value of the work. (The fact that the work is out of print may help with the latter.)

The problem with fair use is that it's always determined on a case by case basis. The only way to know for sure if a particular use is fair use is to wait for the copyright holder to sue you and then make a fair use defense in court.

I was going to suggest that you discuss this with the editor of your journal, but re-reading your question it looks like you're planning to publish to a personal blog rather than an academic journal. In the end, it's up to you (or your attorney, if you choose to hire one) to analyze the relevant legal concepts and rules and decide if and how much of the work to use.