Fair Use of Photo as a Derivative Work - copyright photograph with substantial new elements

Question

This is a real instance, but I'm going to avoid names.

I downloaded a photograph found via Google - a still from a famous show. This is an image of a television character in a known location that was part of the show. The credit for the photo is [photographer/[famous TV company].
To that I superimposed two additional characters - my own photography & green-screen process - to make it look as though they were part of the same scene. To be clear, the original character and location are still recognisable and unadulterated. The only change is it now appears that there are two other 'matching' characters in the scene. There is no hint of any defamation or ridicule of the characters, it is a simple set of 'hero poses' in a known film set location.
This derivation was used for a family calendar in a print run of maybe 6.
I'd call that 'fair use'.

However, I'd now like to be able to post that up online.
There is no hint of any profit being made, merely a 'Hey, look what I can do in Photoshop'; but let's assume I wanted to post it to Stack Exchange, which would assign a CC BY-SA 4.0 license. [As far as my limited knowledge goes] I can't do that because I don't have the right to reassign the original work. If I wanted to post to social media, Facebook etc I really don't know what license they would use… if any. It all seems a bit cavalier.

I contacted the original photographer to see if he would allow this usage - however, he got back to me quickly & nicely, only to explain he doesn't own the rights himself, they were assigned to [famous TV company]. My attemps to contact [fTVc] have drawn a blank.

Am I just plain out of luck?
Is there still any case for it being legally considered 'mine because it is derivative or fair use' or am I still hard up against the rights of the original owner whom I cannot contact? I don't want to just 'post & be damned', I'd rather do this properly [or not at all].

I'm in the UK, additional images & manipulation done UK, original photograph taken in Northern Ireland [again UK], [famous TV company] is American.

Answer 1

First of all there is no such thing as "fair use" in the UK, that is a specifically US legal concept, and it does not apply in the UK. The UK has a legal concept that is somewhat similar, known as "fair dealing" but it is much more limited than the US concept of fair use. See this Wikipedia article and this page from the British Library

In general Fair Dealing is an exception to copyright that permits use for:

• purposes of research or private study;
• purposes of criticism, review or quotation;
• purposes of reporting current events (this does not apply to photographs)

None of those seem to apply to an image from a TV show or film modified to add two additional characters as if they had appeared in the original. Unless somehow this is being used for criticism of the original, but the question does not mention any such criticism.

The Wikipedia article says:

Under United Kingdom law, an infringer relying on fair dealing as a defence must show that their actions fall into a specific category of acceptable use, as opposed to the "illustrative open list of purposes" in US law.[4] The fair dealing exceptions had previously been formalised in case law as "fair use" forms, but this was eliminated by the Copyright Act 1911.

The use as described in the question appears to be a case of copyright infringement by creating a derivative work. It does not seem to come under fair dealing in the UK, and might well not be a valid fair use under US law, either. Whether any profit is made by the infringer is not relevant. Whether the market for the original is harmed is relevant, but not decisive.

However, when used for a small private circulation of less than 10 copies, it is unlikely that the copyright owner would sue, or indeed would ever learn of the existence of the infringement. if posted to the net, however, this is much less safe. Programs exist to make automated searches of the web or of images listed on search engines for images similar to a copyrighted work. If such a search finds a similar image, the copyright holder might choose to file an infringement suit. This is entirely up to the copyright holder. Such a suit might result in significant damages. It is not, however, likely to lead to criminal prosecution unless mass commercial infringement is discovered.

One of the things copyright protects is the right to create, or authorize the creation of, derivative works. Thus it is never correct to say that something is "mine because it is derivative". If the derivative work is made without permission, and the original is protected by copyright, than simply making the derivative work is a copyright infringement, jsut like making an unauthorized copy of the original. Fair use (in the US) or fair dealing (in the UK) is such an exception to copyright. Several of the EU nations have exceptions similar (but not identical) to the UK fair dealing. These are often called "fair dealing" when discussed in English. Most include exceptions for criticism and classroom instruction. None are as broad as the US fair use concept, to the best of my understanding.

The only way to be fully lawful about this would be to contact the copyright holder and request permission for the derivative work, and get it. I cannot say if the holder would grant such permission, or on what terms. The holder has no duty to grant permission on any terms, or even to reply to a request. No reply must be treated the same as a reply of "No!", I am afraid.