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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.

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    This really just come down to whether, when sued, you would win on a fair use defense (or similar law, if you're not in the U.S.A.). Also important is whether your fair use defense would be sufficiently obvious for a litigant to drop the suit (or not to sue at all). The work's status as an orphan work helps a bit (especially in the "impact on the market value" factor) but is certainly not dispositive. – apsillers Jan 29 '16 at 19:36
  • What country do you live in? And in what countr(y/ies) will your scholarly article be published? – Justin Lardinois Jan 29 '16 at 22:34
  • @apsillers - Alas, your language is too technical for me. Could you write an answer, and explain as you go, please? – aparente001 Jan 29 '16 at 23:51
  • @JustinLardinois - I live in the U.S. I would publish in an English language journal, probably. Possibly a British journal but more likely U.S.-based. – aparente001 Jan 29 '16 at 23:52
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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.

  • Very helpful indeed. I have two targets -- scholarly article AND blog post just thrown up on the internet. Because I couldn't find anything to help me figure out how to teach a child with extremely low working memory. I want others who are in the same boat I was in to be able to find my article. So I want to make the information available in both venues. But the blog will have no ads, and I will not make any money from either venue. – aparente001 Jan 30 '16 at 3:43

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