Copyright Fair Use

July 16, 2014

Copyright Fair Use

Nothing pulls together a great blog post or webpage like an eye catching picture. Unless you’re a photographer on the side with a bunch of your own stock photos, chances are you have to get yours like everyone else – on the internet. It’s important to note, however, that not every image you see online is free for the taking. Many, in fact, are protected by copyright and could result in a mess if you use one without permission. To clarify, here is a basic overview of what copyright is, what it covers and what is considered fair use when it comes to using images online.

What is Copyright?

By definition, copyright is a US federal law meant to protect original works of authorship, including written, artistic, dramatic, literacy, musical and certain other types of work.

What you may find surprising is the fact that the very moment you take a picture, touch your brush to a canvas, type or write words or record a note of music copyright immediately attaches and is applied to both published and unpublished works. Unlike trademark or patent, copyright is an automatic right, which means no paperwork is required, although registration may be required in order to enforce these rights. For all intents and purposes, however, just know that in order to use the familiar “circle c” on a piece of work, the author is not required to register.

So what does copyright do? Among other things, copyright provides four exclusive rights to the owner:

  1. The right to reproduce the copyrighted work
  2. The right to publicly display the copyrighted work
  3. The right to prepare derivative works based on the work that is copyrighted
  4. The right to distribute copies of the copyrighted work through sale, rental or loan, and/or to display the image

What does this mean for those of us looking for an image online to use in our next blog post? Well, there are plenty of resources on the internet that offer photos, but there are a few things to keep in mind regarding the rights attached to them. First, the general rule is that you cannot use a copyrighted image without express authorization from the author. There are, however, certain legal constructs that offer ways around this rule and are not subject to “fair use”, such as:

  • Stock photo services – Websites such as Shutterstock and iStockphoto that require you to pay for a license in order to use the images obtained through them.
  • Creative commons licenses – Images that are designated this way confer the right to use them under certain specific circumstances (such as non-commercially).
  • Public domain images – Images which are not subject to copyright in the first place.

What is Fair Use?

In basic terms, fair use is a legal exception to the exclusive rights an owner has for their copyrighted work. While many copyright owners might disagree, fair use creates a delicate balance between protecting the creator of the work in question and promoting the interests of the public. The purpose, according to the Fair Use Doctrine, is to allow for limited and reasonable uses as long as the use does not interfere with owners’ rights or impede their right to do with the work as they wish. Simply put, to fair use is in place to allow copyrighted works to be used without permission as long as it is for the benefit of the public, or for the greater good.

In terms of online images, a good example of fair use would be using a photo of a product obtained from a manufacturer’s website to include in a review you’re writing about said product. Because the image owner’s rights are minimally affected, you would likely be allowed to use the photo under fair use.

Keep in mind, however, that there are certain limits to fair use and in case of a dispute, only a court can have the final say. More specifically, according to Section 107 of the US Copyright Act:

“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—the purpose and character of the use, including whether such use is of a 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; and the effect of the use upon the potential market for or value of the copyrighted work.”

While the first factor listed here tends to be the most important, all four are used by the court in determining fair use.

That being said, here are 5 important things you must consider before taking the plunge and using a copyrighted image you obtain online.

  • Do you fully understand what fair use means? (See above.)
  • What are you planning to use the image for? If it is “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…” (i.e. for use in a commentary or review that is for the greater good of the public), then you’re probably fine. If it’s just to make your blog post look nice, you’re probably better off just purchasing an image.
  • Are you using the image in a “transformative work”? As long as the new work no longer resembles the original, you’re probably safe as far as copyright infringement goes.
  • Are you using the whole image or just part? It seems a bit of a stretch to think one would use just a small portion of an image, but this is a deciding factor on whether you are protected by fair use. Using a piece of an image or a thumbnail that links back to the original will both likely fall under fair use.
  • How much are you willing to risk? Keep in mind that if there is a grey area or you’re not completely sure whether an image is safe to use, you may end up with legal issues that could result in hefty fines and your site being shut down.

The bottom line is this – if there’s ever a doubt as to whether or not an image is acceptable to use freely, your best bet is to always assume it’s copyrighted and go through the appropriate measures to gain permission for its use. There really is a fine line between copyrighted images and fair use, so unless and until you fully understand how these delicate laws work, err on the side of caution. Use one of the many resources available to you, like stock photos or creative commons and tread lightly. It’s better to be safe than sorry.

Images and graphics are important – as long as they don’t infringe on the rights of others. Check out our article for more information on how to use Graphic Design as a Marketing Tool.