The Principle of Fair Use and Image Usage for Bloggers
Letters of OpinionFair Use / Intellectual Property Issues36 Comments
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.
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?
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.
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.
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.
@Daniela: I second that. Fair Use policy doesn’t exist in the UK and Japan either, so best to double check.
Apart from CC licenced pictures you can find many web-worthy pictures on Wikipedia which were released into public domain.
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.
@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.
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.
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.
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.
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.
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/
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)
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!
@Kris Bock:
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?
@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.
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.
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.
Thanks, that makes sense! I will keep my Pinterest to photos I have taken myself.
@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.
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?
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):
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.
Thanks for this!!!! I had been tempted to start Pinterest but hadn’t yet, not even with my own images.
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
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