Romance, Historical, Contemporary, Paranormal, Young Adult, Book reviews, industry news, and commentary from a reader's point of view

The Principle of Fair Use and Image Usage for Bloggers

Image via BigStockPhoto

Introduction

The blogosphere was a buzz these past two weeks over Roni Loren’s announcement that she had used a copyrighted image without permission and was asked to pay a fee for its use, even after she had taken it down. Bloggers have been going through their archives and taking down images out of concern for their own legal liability.

The use of images on the internet is conscribed by copyright law. Just like a book, a photograph or drawing is afforded the same rights of protection against unauthorized copying.    Under copyright law, any unauthorized use of a copyrighted image is infringement. There are exceptions. Some of those exceptions are embodied in the Fair Use exception to the copyright law.

What is unauthorized use?

Unauthorized use is when you don’t have permission from the original copyright creator, either the photographer, illustrator, designer, publisher, etc., to use a particular image.  If you receive permission then you don’t need to look to the exceptions to the copyright law.  Permission equals authorized use.

A new issue that has yet to be litigated is that of implied permission.  If you go to Deviant Art, for example, there are many images that have “share” buttons including pinterest and the like.

Deviant Art Share Code

Some of the art does not have these share buttons and indicate how they want the content to be shared, if at all.  One could argue that the use of “share” buttons give implied permission for distribution.  The question then turns on to whether the distribution is meant to be a link or the actual image itself.  If activating the share button creates only a link then the implied permission may only extend to the sharing of the link, but if the share button creates a reproduction of the image, the implied permission can extend to the sharing (and thus copying) of the image itself.

Another implied permission would be embed codes.  For several years, Dear Author has used LOLCat images from icanhazcheeseburger. I felt safe in doing so because icanhazcheeseburger has embed codes.   Recently the embed codes have been moved off the front page.  I emailed LOLCat about the embed codes and was told that some of the images don’t have embed codes for copyright images and that you needed to click through to the individual page of the LOLCat to see if there was an embed code but if there was one, it was there to be used.

Embed Code for LOL Cats

What is Fair Use?

There is no specific answer to this. The court is the one who ultimately determines what is fair use on a case by case basis. I wrote a bit about Fair Use back in 1998 and I’ll excerpt some of the important stuff here.  The court measures fair use against four principles embodied in the copyright act:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Determining what is fair use is a balancing test. If you think of the scales of justice, the courts weigh the rights of the copyright owner on one side and the public use on the other. The goal is that the rights are balanced against the original purpose: fostering creativity and original thought. Each instance of “fair use” is determined on its own facts, in a case by case basis.

As it relates to screenshots from movies, for example, we use those in our movie reviews because it is a small portion (amount and substantiality of the portion used in relation to the whole) and it involves commentary of the copyrighted work.  Further, our use of the movie stills have no effect on the potential market or value of the movie.  We aren’t putting up a competing product or reducing the size of the market for that movie.

An individual photo copied, however, represents 100% of the copyrighted work.  The market to pay for the copyrighted work are blogs and other publications so unauthorized use can reduce the potential market.  An exception to this was found to be thumbnails under the ruling of Perfect 10 v. Google.  In the opinion of the 9th Circuit, Google’s indexing of images on the internet and reducing them to thumbnail size represented a transformative work that represented fair use.

What can bloggers do?

Flickr.

Many people upload their photos onto Flickr and license them under “Creative Commons”. Creative Commons (or CC) does not relinquish one’s copyright. Instead it says that you may use the image with certain restrictions:

  • Attribution means: You let others copy, distribute, display, and perform your copyrighted work – and derivative works based upon it – but only if they give you credit.
  • Noncommercial means:  You let others copy, distribute, display, and perform your work – and derivative works based upon it – but for noncommercial purposes only.
  • No Derivative Works means:  You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.
  • Share Alike means: You allow others to distribute derivative works only under a license identical to the license that governs your work.

Search – Advanced Search – scroll to the bottom.

Flickr Advanced Search

You limit your search to creative commons works. I promise there are hundreds of photos and illustrations to choose from.  Some not relevant and some perfectly on point.  There are  34,612,069 photos under the Attribution license, for example.

Deviant Art

Deviant art is a smorgasbord of art and photography. Some of the images have embed codes and share buttons. Even better, there are contact forms so you can contact the copyright owner and ask permission if you have doubts about the usage.

Stock Image Sites

For a few dollars an image, you can pay a stock image site for use.  I generally only pay if I am going to use an image more than once.

  • The bestseller icon and the deals icon (with the tag) were images I paid for from iStockphoto.
  • I’ve been using images from BigStockPhoto more recently.  They charge .99c for many images.
  • Stock.xchng is billed as the largest free stock image database.

You can check out Fiction Vixen for more ideas.

If in doubt, ask

In general, if the copyright owner of an image posts an image with share buttons, I see that as permission to use it.  However, if I had any doubts about my usage, I would definitely ask permission before using.  It’s better to be safe than sorry because sorry in these cases may require a monetary apology as well as a written one.

 

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

36 Comments

  1. Daniela
    Jul 29, 2012 @ 06:57:09

    Thank you for that post, Jane.

    One thing I would like to add as the the blogging community is so international: While there are international agreements concerning copyright, each country still has its own laws and regulations and it’s best to check those. Germany for example doesn’t have a fair use-rule, but on the other hand one can use a picture as a quote in an article as long as one adhers to the specific rule for the use of quotes.

    Next to the option you’ve mentioned there’s also the possibility to take your own pictures or use pictures that are in the public domain.

    And I second the advice to contact people. I’ve had contact with several press-departments and they’ve all been very nice and helpful when it came to press-material and images. Same with artists.

    ReplyReply

  2. Maili
    Jul 29, 2012 @ 07:46:53

    @Daniela: I second that. Fair Use policy doesn’t exist in the UK and Japan either, so best to double check.

    ReplyReply

  3. Anne
    Jul 29, 2012 @ 08:02:02

    Apart from CC licenced pictures you can find many web-worthy pictures on Wikipedia which were released into public domain.

    ReplyReply

  4. Pondering copyright: an unpopular position « Her Hands, My Hands
    Jul 29, 2012 @ 08:42:30

    [...] fair use (at least in the USA)–specifically for bloggers, here (thank you, DA [...]

  5. NewLink: The Principle of Fair Use and Image Usage for Bloggers | Leonieke Net
    Jul 29, 2012 @ 08:48:35

  6. mq, cb
    Jul 29, 2012 @ 09:29:05

    Anne, I would caution against using certain Wikipedia pictures without checking their provenance carefully. Under US copyright law, photographs or digital images of artistic works that are out of copyright do not themselves have copyright protection. Under UK law they do. Wikipedia, being a US entity, takes the view that US copyright law applies to what it does and publishes them. However, the UK museums and galleries who digitised them and sell them understandably take a different view, not least because they are not publicly funded institutions and they do not charge for admission so the revenue stream generated from sale of those images makes a significant difference to them. So if you live in the UK or have any connections with the UK, I would be careful about what you use from Wikipedia.

    ReplyReply

  7. Anne
    Jul 29, 2012 @ 09:43:58

    @mq, cb:

    I am aware of this. I referred to pictures released into public domain by their (living) authors and pictures in the public domain due expired or non-existant copyright.

    I never suggested you use pictures marked as being public domain only within the USA and they are marked that way.

    ReplyReply

  8. Hydecat
    Jul 29, 2012 @ 10:43:32

    Thanks for the post, Jane! I’ll probably have my students read it as part of their education about plagiarism and copyright infringement. I’d like to add that Wikimedia Commons can also be a good source of images. A lot of US government agencies (like the NOAA and NASA) release images on that site that are free to use. You can scroll down to the bottom of each page to check the licensing information.

    ReplyReply

  9. Connie Brentford
    Jul 29, 2012 @ 12:13:43

    Good post, Jane, one that so many people need to see.
    I would like to add MoregueFile as another site to get great free images. I’ve included the link to their license. http://www.morguefile.com/license/morguefile Most of their work must be used on a stand alone basis which I understand to mean it must be modified in order to use.

    ReplyReply

  10. Christina
    Jul 29, 2012 @ 17:11:28

    I’ve used Free Digital Photos — free, with attribution. It’s a UK-based site and if you rather not mess with attribution, you can purchase the pictures.

    ReplyReply

  11. Jenny Lyn
    Jul 29, 2012 @ 20:16:50

    Thanks for this, Jane. It was easy to understand and very helpful! I’ve bookmarked this page for future reference.

    I’ve also started to take my own photos with use in future blog posts in mind. I have a couple of friends who are amateur photographers who’ve given me blanket permission to use any of their photos I’d like to, and I’ve in turn promised to give them full credit for the work. It’s a win/win for me, especially when I’m just looking for an image to brighten up a post.

    ReplyReply

  12. 25 Twitter Accounts That will Make You Smarter and More Links of the Week
    Jul 29, 2012 @ 20:29:28

    [...] The Principle of Fair Use and Image Usage for Bloggers | Dear Author (via @100scopenotes) [...]

  13. Kaetrin
    Jul 29, 2012 @ 21:37:21

    here’s a link to the Australian Copyright Council’s Q/A page – there is a fact sheet on what can be used without permission. In Australia, there is no “fair use” but there is “fair dealing” and it covers review, criticism, parody and satire. http://www.copyright.org.au/find-an-answer/

    ReplyReply

  14. BRNZ
    Jul 30, 2012 @ 02:34:16

    Good to se this being bought to attention, as an amateur photographer this kind of thing is near and dear to my heart. I had one of my images used in an article on a national news site with no credit at all and it was heartbreaking.

    For anyone looking for images to use for free but with links and credit I have 1300+ images here http://www.flickr.com/photos/thebluerose. Drop me a line :) (and apologies if this is not appropriate)

    ReplyReply

  15. Kris Bock
    Jul 30, 2012 @ 10:27:25

    I really appreciate your legal insight into various areas. A couple of follow-up questions here –

    What about book covers? I blog about the craft of writing and sometimes use my covers, those of guest authors, or those from books I’m using as (positive) examples. I expect no one’s going to mind, but the author probably doesn’t legally own their book covers (unless self published). Would this be covered under some kind of fair use?

    What about Pinterest? I’ve heard people worry about copyright infringement if you re-pin something, but also heard that because you only “pin” to the original image, you’re not actually using it, so you should be safe. I’m not sure I quite buy that!

    ReplyReply

  16. MrsJoseph
    Jul 30, 2012 @ 10:37:08

    @Kris Bock:

    What about Pinterest? I’ve heard people worry about copyright infringement if you re-pin something, but also heard that because you only “pin” to the original image, you’re not actually using it, so you should be safe. I’m not sure I quite buy that!

    I would like to know more about using Pintrest, too! I don’t use the service except as a gigantic internet photo album (not for blog use)… are those an issue, too?

    And what about lawsuits for bloggers who do not have any monetary gain from use? Does that make a difference?

    ReplyReply

  17. Jane
    Jul 30, 2012 @ 10:39:24

    @Kris Bock: We use book covers (a thumbnail version) with the review and view it as fair use. Not every usage of a book cover will be fair use, however.

    As for Pinterest, I totally disagree with what that person was told or says. Repinning is copying and even if it is for non commercial use, it could be problematic. I’ve heard a number of blog owners and photographers complain about the Pinterest copyright infringement.

    ReplyReply

  18. Sunita
    Jul 30, 2012 @ 11:51:47

    Pinterest just strikes me as an accident waiting to happen.

    Attribution and permission are two different concepts. Just because a blogger gives credit to the creator doesn’t mean she’s received permission to use the image, any more than giving credit to an author means you can post a pdf of her short story on your site.

    ReplyReply

  19. Brianna (The Book Vixen)
    Jul 30, 2012 @ 12:02:37

    I’m a little apprehensive about using Flickr Creative Commons. I saw this image and in the comments section someone left this link which shows the exact same image FOR SALE on iStockphoto.

    ReplyReply

  20. Kris Bock
    Jul 30, 2012 @ 12:05:10

    Thanks, that makes sense! I will keep my Pinterest to photos I have taken myself.

    ReplyReply

  21. Castiron
    Jul 30, 2012 @ 13:45:22

    @Kris Bock: Every publisher that I’m familiar with is fine with the use of a book’s cover image to illustrate a review of that book. I’m not going to say all publishers are okay with it, because there’s always some bizarre outlier, but I’d consider a publisher who *did* require permission for such use unprofessional.

    Note that this applies to the cover as a whole; using part of the cover may be another story. For example, if there’s an illustration on the front cover, and you crop off the title and author and just use the illustration to illustrate your review, that may be infringement — the illustrator may have only licensed use of that illustration in the cover as a whole.

    ReplyReply

  22. Jill Sorenson
    Jul 30, 2012 @ 19:03:17

    Thanks for the info, Jane. I recently deleted hundreds of old blog posts rather than going through them to check every image. I think the solution for me is to stop using images, oeriod. How do I know if the person I ask permission (or buy content) from is the legal owner? If they aren’t, I assume that I’m still in violation.

    Also, what about guest posts? Some bloggers add their own images and sometimes I’ve sent my own with the text. Who is responsible in that case, the guest or the blog owner?

    ReplyReply

  23. From My RSS Reader To Yours: RWA, RITA Winners, Copyright, WordPress Tips And Giveaways - Fiction Vixen Book Reviews
    Jul 30, 2012 @ 23:50:46

    [...] The Principle of Fair Use and Image Usage for Bloggers – “Bloggers have been going through their archives and taking down images out of concern for their own legal liability. The use of images on the internet is conscribed by copyright law.” Dear Author [...]

  24. Wordpreneur Reader 07.31.2012 | Wordpreneur
    Jul 31, 2012 @ 08:01:58

    [...] The Principle of Fair Use and Image Usage for Bloggers (Dear Author) – “Under copyright law, any unauthorized use of a copyrighted image is infringement. There are exceptions. Some of those exceptions are embodied in the Fair Use exception to the copyright law.” [...]

  25. Nodds & Nends: Love Triangles, Matt Smith, and The Avengers « Absurdly Nerdly
    Jul 31, 2012 @ 09:18:42

    [...] A few more posts about responsible blogging and copyrighted images have some good information and ideas. Check out Being a More Responsible Blogger and The Principle of Fair Use and Image Usage for Bloggers. [...]

  26. Friday Fry-Up — Speakeasy
    Aug 03, 2012 @ 00:15:42

    [...] DearAuthor.com have been following the Roni Lauren lawsuit regarding pictures used on her blog, and have posted The Principle of Fair Use and Image Use for Bloggers. [...]

  27. Stumbling Over Chaos :: Linkity lumps it
    Aug 03, 2012 @ 06:40:40

    [...] Dear Author on fair use of images for bloggers. Kris shares some thoughts on blogging and copyright. [...]

  28. Nikki Logan
    Aug 05, 2012 @ 03:27:00

    I would advise a certain amount of caution, too, re how stock images are used in blogs. For instance, images faithfully purchased from iStockphoto come with fairly comfortable permissions but some limiting restrictions, one notable one from their Standard License Prohibitions (bolding is mine):

    “You may not… Incorporate the Content in any product that results in a re-distribution or re-use of the Content (such as electronic greeting card web sites, web templates and the like) or is otherwise made available in a manner such that a person can extract or access or reproduce the Content as an electronic file

    So posting an image on a blog without embedding it in another graphic or a banner and where it can be right clicked and saved/shared could be construed as a breach of their terms.

    I get why – that’s how images whizz around the interwebs forever. But I’d be interested to hear if other stock imagery providers have similar or more relaxed restrictions.

    ReplyReply

  29. Thirsty Thursday Blog Round-Up | Thirsty Thursday
    Aug 13, 2012 @ 10:19:21

    [...] Laws — Kristin Nador Blog Images Made Easy: Tips From a Non-Graphic Artist — August McLaughlin The Principle of Fair Use and Image Usage for Bloggers — Dear Author (Jane Litte) 5 Hollywood Sequel Tricks to Turn Your Sizzling Blog Post into a [...]

  30. A very mixed bag this month … | How To Write Shop
    Aug 22, 2012 @ 07:44:13

    [...] There’s been a lot of talk about image copyright violations on blogs. Here’s a nice summary of the [...]

  31. How to do a Google image search (and why you might want to) #BloggerTips
    Oct 14, 2012 @ 11:42:08

    [...] had a great post about copyright issues for photographs and other images. As anyone who has visited blogs and review sites has probably noticed, people are much more [...]

  32. Brenda
    Nov 13, 2012 @ 17:16:31

    Thanks for this!!!! I had been tempted to start Pinterest but hadn’t yet, not even with my own images.

    ReplyReply

  33. 4 Unconventional Tips To Land An A-List Guest Post
    Sep 03, 2013 @ 11:21:32

    […] copyright infringement cases are gaining popularity, which is the reason why most authoritative blogs mention the need for stock or original images in […]

  34. Using images in your blogs | MMU ESRI MRes
    Sep 30, 2013 @ 10:37:02

    […] The Principles of Fair Use and Image Usage for Bloggers […]

  35. Mac
    Dec 11, 2013 @ 14:26:17

    Hi Jane, liked your thoughts. I think I’ll take issue with one small point that you made: if there is an embed code that implies sharing. As a webmaster of a site (www.frumpics.com) that pays for images, I know that an embed code gives us a link back to the site. That is extremely valuable in web-parlance.

    Moreover, an embed is likely to provide context to the image, as the poster will say ‘look at this picture of Bill eating ice cream’ before the embed, giving search engines information about that image they can parse and index.

    If someone takes the image and posts it, however, even with attribution, all that is lost. So in fact an embed code encourages embedding (surprise!), not ‘borrowing’.
    Thanks for your post!

    Mac

    ReplyReply

  36. haider
    Mar 06, 2014 @ 13:20:20

    i would like to know if i write mobile phone review on my website from which i intend to earn money through advertiements, can i use mobile phone images from nokia.com, samsung.com etc or will they sue me for using them even if i link these images to the originaal source

    ReplyReply

Leave a Reply


+ 6 = 15

Notify me of followup comments via e-mail. You can also subscribe without commenting.

%d bloggers like this: