The Principle of Fair Use and Image Usage for Bloggers
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.
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.
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.
- Fair Use part 1: The Proper Application of Fair Use
- Fair Use part 2: Fan Fiction, Edwards and Rowling
- More on Rowling and limits of Fair Use
What can bloggers do?
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.
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 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.