What is “fair use” of photography? And what does that mean for my blog?


copyrightGreat blogs almost always use photography well. And there is just so much great photography out there on the ‘net! The problem is, much of that great photography is owned by the photographer who owns the copyright for its use (see Who Owns that Photo of your Horse).

There has been a long (and somewhat heated) thread on a horse forum recently about a blog that has used at least one image taken by a professional photographer by “hotlinking” to it on another site (that’s when you plug the URL of the image into your own blog post) without paying for the image, asking for permission or giving attribution.

No big deal, you might think. It’s just an image. Well, maybe not to the photographer. In this case the photographer had licensed (i.e., sold) the right to post the image to a news site. The blog piggybacked on that usage in two ways: first, it used a photograph without paying the photographer and second, by linking to the image rather than uploading it to its own site, it was sucking bandwidth from the originating site.

I wasn’t aware of the problem with hotlinking photos — I’ve certainly done it myself (but no longer). Here’s the problem: if you have a photo hosted on your site, it uses a certain amount of bandwidth. Every time an outside site links to that image and “posts” it on their own site, they are using YOUR bandwidth, not there own. It’s not a huge problem until that escalates. When a photo goes viral, it can be reproduced all over the ‘net.

What about “Fair Use”

A few people on the thread brought up the concept of “fair use” which allows copyrighted materials to be used for specific purposes. Fair Use is, however, does not provide a blanket excuse for using copyrighted work without permission.

Fair Use is covered in Section 107 of the Copyright Act.

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

(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.

What does that mean? Doesn’t it say materials can be used for news reporting?

Yes and no. The first factor looks the new work, created by using the copyrighted materials, and evaluates it based on whether it is used for non-profit/educational purposes or is commercial in nature (preference is given for non-commercial use); whether it is used for criticism, comment, news reporting, teaching, scholarship or research (also linked back to the commercial/non profit element) and whether the new work is transformative (giving new meaning to the work) or merely illustrative. For example, if you use a photograph as part of a product review or commentary, you have created something new.  In the case of photos used on http://www.lolcats.com, I suspect that the addition of the captions is considered transformative. However, if you use a photo to support an article, the copy may not have added new expression or meaning to the image.

The second factor looks at whether the materials are worthy of copyright protection. In the case of photography, that actually happens the moment the photographer presses the shutter. Even if a photograph is not marked with a copyright statement it belongs to the photographer until he sells its use.

The third factor looks at how much of the work is used. Ideally you should use as little as possible of the original work — excerpting just enough to make your point. The subfactors include evaluating the quantity, quality and importance of the work used. For example, you can quote from a speech, especially when using the quotes in a new context, but you cannot reproduce an entire book.  With a photograph, that concept is trickier.

The fourth factor considers whether the use of the material will harm the commercial value of the original material to the copyright owner.  In the example above, the website included a photograph on its site that the photographer was selling to similar sites. This has the potential to harm the copyright owner because other people might not feel the need to buy the image either. Depriving the copyright owner of income is usually an indication that the materials do not fall under the Fair Use doctrine.

If you have any concerns about your own use of copyrighted materials, use one of the Fair Use evaluator tools to help you consider your use against the four factors discussed above.

Best Practices “Fair Use” of Copyrighted Materials

If you think your use of materials is “Fair Use” then there are certain protocols that you should follow. The most obvious first step is to ask permission. Many photographers will let you use an image on your blog, especially if you are a “hobby” blog with no commercial interests. Additionally, as was discussed earlier, don’t hotlink to images on someone else’s site. You should upload the images to your own site and then provide a text link back to the source.

I found these “best practices” recommendations on the blog A Photo Editor.

  • Always include the photographer’s name and links to both the image(s) you are writing about and their portfolio in your story or in the caption to the image.
  • The destination of the anchor link for the image should be the page where the image was found (most blogging platforms have the anchor link to a larger size image so this has to be changed manually).
  • The bare minimum number of images should be used to make your point. You want to pique the readers interest so they visit the photographers site to see a full selection of images.
  • Use a screenshot of the image (instead of downloading the file used on their site) and include as much of the surrounding page as possible so it’s obvious that the image came from another website.
  • The end result should always be that readers, who find the photograph interesting, click to visit the photographer’s site.

What does it mean for your blog?

If you want to take the legal and moral high ground it means that you need to ask permission to use photography, not grab it off the Internet. Or, you need to take pictures to illustrate your own articles.

For most “hobby blogs” where there is no commercial gain, I think the big stock houses are unlikely to come after you for copyright infringement, but it’s also not a game of chicken that I’d particularly like to play. Individual photographers may ask you to take their pictures down, but they shouldn’t need to ask.

If you are a commercial site and depend on hits and views for your revenues, you have no excuse for posting photographs that don’t belong to you. It’s as bad as shoplifting and it’s illegal.

Your best bet is to develop relationships with some of the photographers in your industry and find ways that you can use their images with their permission — even if it means that sometimes you need to pay for them. Or, depend on the power of words.

Resources

Measuring Fair Use“: Stanford University Libraries and Academic Resources website

Fair Use Evaluator

Photo Attorney: The Fuss About Fair Use

10 Big Myths about Copyright Explained

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4 thoughts on “What is “fair use” of photography? And what does that mean for my blog?

  1. franjurga

    Thanks for taking on this difficult subject, which is near and dear to my heart, both as a blogger who uses photography and as a publisher of images that are used without my permission. I’m appalled at the way that Google Images (and Yahoo, too) displays images to anyone who searches and makes it so easy for people to take them.

    Ditto for blogging software–Blogger and WordPress, anyway–that encourage you to add a photo by url and make it so much more work if you have to upload an image. Don’t even get me started on Facebook’s “download” buttons under all photos.

    I spend part of my day, every day, communicating with photo rights owners for permissions and it’s a lot of work, but worth it in the end. I also keep binders full of records on images that I’ve been given permissions to download or blog, along with correspondence.

    I don’t think other people do that, which may be another reason why my blogs aren’t as prolific as they might be. Funny thing is, I almost never get any permissions requests for images that appear on my blog, many of which are loaned by vets and farriers and authors, or are my own. People just take them.

    The worst worst worst excuse I ever head when asking someone why they had used my photo without permission was that didn’t I know “It’s easier to ask foregiveness than to ask permission.”

    Have you ever?

  2. Annette

    Of course, if you go to a site like flickr, permissions are included with images. This way more amateurs are getting referenced rather than pros, but it is one way to find photos you’d like to use. I haven’t found any of my photos linked to blogs I didn’t know about yet, but have had them used by several blogs. Here’s an explanation of what the licenses folks can select mean:
    http://creativecommons.org/licenses/

  3. Here’s another good reason to not use someone else’s photo unless you have permission or are CERTAIN your use is fair use: http://blog.webcopyplus.com/2011/02/14/legal-lesson-learned-copywriter-pays-4000-for-10-photo/

    The biggest problem in all of this is that the way copyright law works, it only protects the big guy. Due to the high cost of pursuing a copyright violation, small guys can’t afford to pursue most violations, even if they are 100% in the right, even if they registered the image with the copyright office (necessary to get any big awards in a lawsuit), etc.

  4. Liz Goldsmith

    Great link — it’s an expensive lesson! I know that with my corporate clients we always negotiate unlimited use for photos because over the years we’ve found that images take on a life of their own and pop up in all kinds of places . . . mostly because many people didn’t understand that we’d bought the rights to the photo in for a specific use. Now they’re covered and the client doesn’t get sued.

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