Understanding whether you have used an image legally or not can seem very confusing. Many bloggers just rely on the chance that they will not get found out which doesn’t always turn out well, especially if you use images from a photographer who is particularly vigilant in pursuing rights. Also, just because you cited the source, does not mean that you did not infringe on someone’s copyright – this is not a research paper for history class we are talking about. Frankly, this topic can get hairy, but if copyright is something that will come up in your professional or personal life, it is best to educate yourself as much as you can.
A Battle Plan
Asking for Permission
It is less risky to get permission from the copyright holder rather than to simply rely on fair use when using copyrighted images online. Sometimes it’s hard to determine who the owner of the image is given the rampant reposting of images on the web, but TinEye, a reverse image search engine, could aid in hunting down the original owner’s website. (By the way, photographers use this same technology to find unpermitted instances of their photos so that they can issue take down notices.) You can get verbal permission but writing is best, even if it is in the form of an email. Make sure you inform the owner exactly how you intend to use the image. If you don’t have permission to use the image, then you must ask yourself whether you can use it anyway as a fair use.
What is Fair Use?
Fair use is a provision within copyright law that allows for people to build on the work of others to create new ideas, to inform, or to educate. This all sounds great, but deciding what is fair or not can be murky territory. Ultimately, fair use is a defense made in court to an allegation of copyright infringement, and a court makes a decision based on a balance of four factors. Just because you can answer one factor favorably does not automatically make it a fair use; for example, just because your use is educational does not necessarily outweigh other factors. Let’s see how those four factors may apply in the case of using images on a blog.
- How are you using the image?
Is your blog commercial? If so, it is less likely to be fair. Being non-commercial is not a get-out-of-jail-free card, though. If you are using the image for purposes of education, journalism, criticism, or commentary, your use is more likely to be fair, with some caveats. If you are using an image to help report a story, have you only used as much as is necessary to illustrate the point? Do you specifically need that image to report the story? Are you adding commentary or criticism of the image or are you just making your blog prettier? Transforming the character of use of the original image by adding something to it like commentary makes it more likely to be fair use. Making your blog prettier is no defense.
- What is the character of the work?
Factual works are less protected than creative works. Images tend to be creative, so this weighs against the use being fair.
- How much of the work did you use?
Typically when you use an image, you use the whole thing. This weighs against fair use. There is some precedence for a lower resolution image or a thumbnail to qualify as “less” of an image, though.
- Did your use effect the potential market value of the work?
There is an established market for selling images. Realize that when you use an image without paying for it, you are potentially harming the photographer’s ability to profit from their work. This weighs against a fair use, particularly if it is the creator’s intent to sell the image.
The four factors make it pretty clear why we need to be particularly careful with copyrighted images. Just because an image is used for journalistic purposes does not mean that it is fair use. Probably the most important factor of the four to consider is how you impact the market for that creator and whether the creator intended to profit from the image in the same manner as your use. If you need any convincing about how unlicensed image use effects the market from the human perspective, Rachel Scroggins writes eloquently about it from the point of view of a fashion photographer.
Ultimately, the risk may be low if you have a non-commercial blog with a small following; however, it is best to follow the highest ethical standards, particularly if you are risk-adverse. Here are some best practices:
- Don’t remove any watermarks or copyright notices on images that you use.
- When in doubt, ask for permission.
- Always credit others’ work. Minimally, supply the name of the photographer and a link back to the photographer’s site.
- If you are relying on fair use, make sure you are using the material for a different purpose. Consider using a thumbnail or a lower resolution image, or only use the part of the image needed for your purpose.
- Finally, educate yourself. Listen to this lecture on copyright law as it applies to journalism from the Online News Association. Read up on the Set of Principles in Fair Use for Journalism. Also, Poynter News University has a great free online class that covers copyright issues as they relate to content published online and in social media.
Looking for more information or places to find legal images on the Internet? Check out my guide on images and copyright.
I am not a lawyer, and this is intended to be educational and not serve as legal advice.
Megan Heuer, Communication Arts Librarian, Hamon Arts Library.
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