Understanding Fair Use

You have a killer blog post to publish….but you need some images to go with it.  You flip over to google, search some keywords, find some great images, download, upload to your site, done. 

Wrong.

This is completely wrong.  

Photographs are protected by copyright at time of publication and typically use by anyone else is not allowed, especially for commercial use, unless it falls under the Fair Use Doctrine.   Understanding the doctrine of Fair Use and how to use images will keep your blog out of hot water and smooth the legal sailing of the blog. 

What is fair use?

The Fair Use Doctrine is found in Section 107 of the Copyright Law with a list of various purposes for which use of image by a non-copyright owner (that would be you, unless you took the photograph or were given the copyright ownership) may be considered fair.   Some of these purposes include: commentary, news, criticism, comments, teaching, research, etc.

The purpose itself is not indicative of allowing someone free reign to use your photograph though – the Section also outlines four factors to be considered in determining whether or not a particular use is “fair”.

• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
• The nature of the copyrighted work
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole
• The effect of the use upon the potential market for, or value of, the copyrighted work

Section 107

The goal with this doctrine is to benefit society through the use of the copyrighted work – and while courts are supposed to consider all of these factors – some factors may be given more weight than others – based on the type of work and use of said work.

The courts have made clear that Fair Use disputes, “always ‘call for case-by-case analysis.’” Castle Rock Entertainment v. Carol Publ’g Group, 150 F.3d 132 (1998).

What if I want to use someone’s images or text?

It is important to note “acknowledging the source of the copyrighted material does not substitute for obtaining permission.” US Copyright Office 

In fact, a recent article on LifeHacker explains “while it is difficult to detect visual plagiarism, when it does occur it’s not a legal problem. Plagiarism is an ethical concern that may have other elements of intellectual property theft tied with it. Copyright infringement, on the other hand, is illegal and carries with it potentially significant consequences. Plagiarism can be avoided by providing attribution and giving credit, copyright infringement cannot. ”

LifeHacker goes on to say that “copyright law gives the copyright holder the right to decide where their work is published and maybe they don’t want their work on your site, in your book, included in your newsletter or distributed to your social media network. It’s not for us to question why they (the copyright owner) wouldn’t want “exposure.”

Since it is not clear cut for use, despite the outlined law, it is always best to err on the side of caution and not to use another person’s images without explicit permission.  Here are some alternatives:

• get a license from the private individual for use
• purchase from stock photography companies that provide an accompanying license
• seek out sites that have Creative Common Licenses

Take for example the featured image for this post.  The image was not created by me and I have not received copyright ownership.  Therefore, I had to get permission to use the image.  How did I do this? I purchased a commercial use license from Haute Stock.   

Here is a list of resources of images for use:

• Creative Commons (free – and links to 13 different creative commons sites)
• iStockphotos (paid)
• Shutterstock (paid)
• Haute Stock (paid)

Additionally, remember that if you take an image and use it, you cannot count on being able to claim “fair use” as a defense to a copyright infringement claim. As this area of the law is extremely fact dependent, you should always check with qualified legal counsel if you want to use an image or work created by another under the “fair use” doctrine.

Lastly, if you do use someone else’s image be sure to keep in mind that  acknowledgement DOES NOT substitute for obtaining permission, but also alteration of the image does not provide you, the user, copyright ownership.

Want to read more?

You can find Summaries of Fair Use Cases by Stanford University or The Graphic Artist’s Guild that outline some specific situations to help add some context to this discussion.