I’d say most people writing about photography and/or photographers on a blog are using the “Fair Use” limitation in copyright law (here) as a way to avoid having to get permission and possibly pay for the use. I use it sometimes and in turn I can expect to see things that I write about quoted and used without my permission as well.
I’ve been asked a few times by readers “What’s fair use and what’s illegal when using photography that’s not yours on a blog?” I can’t actually answer that question, because I’m not a lawyer, but I would like to help bloggers understand the best practices for using photography that doesn’t belong to them, so when I saw this “Code of Best Practices in Fair Use for Online Video” (here) I thought I should create one for photography (and not 16 pages long), since it doesn’t already exist. There’s really no end in sight to the practice of bloggers writing about a photograph or a photographer and then posting a picture, so don’t you think it’s time we set down some guidelines on what acceptable and what’s not? I’m going to post the best practices guide on the url http://www.fairusephoto.com and I’d like it to represent what photographers and photo industry bloggers feel is acceptable. Here’s what I think:
Nearly all the photography in the world is copyrighted and belongs to the person who took the picture.
The absolute best practice for using photography that doesn’t belong to you is to ask for permission first.
Oh, you thought there was more? Email or call the photographer and ask for permission. It’s that simple.
If you are looking to cite “fair use” as a way to publish copyrighted images without permission because you believe it falls under the following:”for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright” then you should follow these best practices:
Always include the photographers 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.
Please understand that this is a best practices guide and following this guide does not exempt you from copyright infringement and potentially a lawsuit from the copyright holder. It is ultimately up to the courts to determine if your use was “fair use.”
Here are some resources for further exploring copyright and fair use:
Copyright Term and the Public Domain in the United States, 1 January 2008.
US Copyright Office- Can I Use Someone Else’s Work? Can Someone Else Use Mine?
Let me know what you think.
Comments 33
my understanding of copyright is that a copyright (or more correctly, the rights protected by it) is in force when the work is created. There is not requirement that it be registered: it happens automagically. Has that changed?
Copyright is not the same as a license or sale: the creator’s rights are protected, whether the image is offered for re-use or not. This is one of the reasons for Creative Commons: one can apply a blanket license that permits re-use under specific conditions.
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Posted 10 Sep 2008 at 10:18 am ¶More excellent fair-use advice here, courtesy legal-blogger Gabriel Malor.
Your advice should be taken with a great deal of caution when dealing with wire service photographs, incidentally. Their fleet of lawyers are enough to overpower any “fair use” argument, whether or not the use thereof is justifiable or not.
Anyway, thanks for the awesome writeup—I’ll definitely be recommending it!
Regards,
Brian
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Posted 10 Sep 2008 at 10:25 am ¶First, let me thank you for this excellent blog. I am just an amateur photographer but I find many of your articles interesting.
Wrt fair use and copyright, a great web resource that I use is http://www.photoattorney.com. She has lots of great links there.
Keep up the good work!
Matt.
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Posted 10 Sep 2008 at 10:46 am ¶[Reply]
Posted 10 Sep 2008 at 10:47 am ¶I would possibly add that maintaining the original metadata of any image is vital too. Stripping it is a violation, but many people don’t know that. Stripping then posting the image without permission is a good way to end up very broke.
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Posted 10 Sep 2008 at 10:51 am ¶If you are not using photos on a coporate level to generate income I am going to make a strong assumption and say that most individuals will probably not go and hire and attorney and create a war because you used a photo on a blog. Start off by contacting the owner and asking if it is ok to use the photo and possibly leave a link behind to that website. A nice link back can goa long way.
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Posted 10 Sep 2008 at 11:01 am ¶Yep, leave the metadata alone and do not remove any copyright statement or watermark.
That offense alone will cost you between $2500 – $25000 on top of attorney fees and any damages from infringement – Section 1202 of the U.S. Copyright Act.
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Posted 10 Sep 2008 at 11:12 am ¶But if you do a screengrab of the page (ie, Command Shift 3, or Command Shift 4), you’re certainly going to be stripping the metadata.
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Posted 10 Sep 2008 at 11:23 am ¶“The bare minimum number of images should be used to make your point.”
hahaha! great advice. I laugh my ass off when I find a site that posts EVERY single image from my site and some I didn’t think were on my site anymore?!?
But I definitely am not bothered when bloggers post my images, I actually feel silly when I get that odd 1 out of 50 bloggers that emails me and asks. What am I gonna say? “No, please don’t flatter me with kind words about my work and share my images to people who may otherwise not have heard of me”?
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Posted 10 Sep 2008 at 11:28 am ¶@ 1 -”my understanding of copyright is that a copyright (or more correctly, the rights protected by it) is in force when the work is created. There is not requirement that it be registered: it happens automagically. Has that changed?”
No- that has not changed. The purpose of registration is statutory damages in the event of an infringement suit. At least for now. Orphan Works legislation takes that off the table.
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Posted 10 Sep 2008 at 11:56 am ¶@7 – A screenshot should never be used. When calling for permission to use the image, the photographer should supply you with a file with metadata attached.
@8 – “I actually feel silly when I get that odd 1 out of 50 bloggers that emails me and asks.”
It is better for you to feel silly than to have people not be required to ask. Too many people already believe they are entitled to take whatever they want simply because it’s there.
“What am I gonna say? “No, please don’t flatter me with kind words about my work and share my images to people who may otherwise not have heard of me”?
It all depends as to whether or not you want to associate yourself with whoever it is that is putting your work on their blog. Being selective is not a bad thing.
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Posted 10 Sep 2008 at 12:07 pm ¶What I get confused about is fair use on a site that generates revenue via advertisements … is it still acceptable to post images for news/comment if the site or blog has ads? (I can see arguments from both sides)
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Posted 10 Sep 2008 at 12:49 pm ¶emailing photographers – yeah well most of them don’t write back you know…
By the way has someone the email of David Lachapelle – I wanted to write a critical piece on it – I mean his personal email- not the myspace which his assistents use to get models. And don’t bother with his agents email – they are already busy with other creeps then to care about bloggers.
Anway if you pull one image of mine and use just that and include my name and a link to my page I am totally fine with it (metadata or not). You can praise or criticise me I don’t care but link to me and just use one or two images max.
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Posted 10 Sep 2008 at 1:12 pm ¶@9 That is inaccurate. The current proposed OW legislation (both bills) would eliminate statutory damages for works which are determined by the courts to be orphaned, and only such work. Registration is virtually assuring that work will not fall into the orphan category. See this from the LOC:
http://www.copyright.gov/docs/regstat031308.html
See also Myth#3 here:
http://www.publicknowledge.org/issues/ow/myths-and-facts
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Posted 10 Sep 2008 at 1:18 pm ¶@13 -”Registration is virtually assuring that work will not fall into the orphan category. ”
Registering your work with the Copyright Office will not assure any such thing. Should the proposed legislation be enacted into law, there will be a minimum of two private databases that photographers will have to register their images with. For all we know there may be many more databases established as this will conceivably be a huge revenue generator. If someone uses a screeenshot, or scans an image from a magazine, or any other scenario where there is no metadata, having that work registered only at the Copyright Office will not prevent the work from being deemed an orphan.
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Posted 10 Sep 2008 at 2:14 pm ¶@13 – See also Myth#3 here:
http://www.publicknowledge.org/issues/ow/myths-and-facts
Public Knowledge lists The Association of College and Research Libraries as one of the groups they work with. The universities and the libraries are avid supporters of Orphan Works legislation. They also have a link to Creative Commons on their site. Lawrence Lessig is no friend to either copyright or photographers.
Re: statutory damages – I had a lengthy meeting with Howard Berman’s Chief Counsel on Capital Hill. When I suggested they leave statutory damages alone, she told me that would be impossible as statutory damages is the heart of the legislation.
Howard Berman wrote the bill and introduced in Congress. I’m going to go with his Chief Counsel and believe her on this one.
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Posted 10 Sep 2008 at 3:02 pm ¶[Reply]
Posted 10 Sep 2008 at 3:19 pm ¶Rob,
A couple key points:
1. Screenshots exclude metadata such as copyright notice and creator contact information which could potentially make the images into an Orphan Work. I suppose screenshots of an entire web page are fine, otherwise I’d much rather you download from my site so you can include my metadata.
2. To be considered Fair Use, the commentary or must be about the photograph itself NOT about the subject of the photograph. In other words, it’s cool for you to repost one of my photos for a critique of my work – but not cool if a celebrity site posts one of my photos for a story about an actor I shot…
In general I’d probably be cool with any blog post that would benfit me, such as blogs like yours about photography, as long as my metadata isn’t stripped out and I’m properly credited or better yet, if the post links to my website.
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Posted 10 Sep 2008 at 4:33 pm ¶I’m not sure that the lack of metadata is a particularly valid reason not to use a screenshot. Photoshop’s “Save for Web” feature strips metadata from files. A lot of people use Save For Web because it makes the files substantially smaller (60kb instead of 200kb). So, using the actual picture file from a site (which is an impossibility with flash sites, by the by) may not solve the problem.
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Posted 10 Sep 2008 at 7:23 pm ¶I keep a blog and use work by photographers on a regular basis. I never seek prior permission, because I don’t think I need to do so based on a common sense reading of the law. There are four criteria for determining fair use, none are legally dispositive in themselves. So the situation is probably more complicated than Rob suggests. The criteria as laid out by the U.S. Copyright Office are:
“Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. 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.”
I make no money off the blog; I use it for purposes of education & criticism, etc.; I never use more than one (or maybe a couple) of images from any photographer’s work (and of course what counts as a work? the series, the photo essay, the individual image?);
and I seriously doubt that anything I show or say on the blog (insightful as my comments always are) will have any effect on the value of the work; to the contrary, I suspect, more chatter can only help most photographers, for whom the basic problem is not that too many folks are noticing their work.
I always try to link directly to the maker’s web site (or sometimes to their gallery representation). Sometimes that is not possible because there is no such page. I always attribute copyright to the photographer. And, often I email the photographer and tell them I’ve posted on their work.
All of that said, the first step in any complaint about such issues is a ‘cease & desist’ letter from a lawyer. Were I ever to receive such a letter, I’d simply take the offending image down. The case is then moot. (Although I’d also likely post on having received the letter.) I’ve been keeping the blog for several years and get what to me seems like a ridiculous number of visitors. I’ve never gotten a complaint from a photographer. I have gotten multiple emails thanking me.
For idiosyncratic reasons I wrote a longish post on this topic last spring. You can find it here:
http://politicstheoryphotography.blogspot.com/2008/04/
amy-alkon-christopher-harris-redux.html
Best, Jim Johnson
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Posted 11 Sep 2008 at 12:08 am ¶By the way, Rob, thanks for prompting this discussion.
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Posted 11 Sep 2008 at 12:10 am ¶As a photographer, I definitely agree with your understanding of fair use on a weblog. In fact, I did discuss this very point with bloggers willing to use a picture of mine, lately. We got the same conclusions as yours.
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Posted 11 Sep 2008 at 3:50 am ¶Referring to US-laws only ? … in a global world ?
Hey ladies, besides Texas there are other count(r)ies too on this planet … give us a chance *smile
@M.Scott
Unfortunately it’s a very easy task to strip off images (and any content as well) even with flash sites … so, don’t think you are safe
best, Reini
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Posted 11 Sep 2008 at 4:56 am ¶Hi interesting discussion I found everyones comments useful, its a great inspiration for my own work…
cheers Rob
http://www.takemyphotograph.com
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Posted 11 Sep 2008 at 8:38 am ¶look at it this way:
4. the effect of the use upon the potential market for or value of the copyrighted work.”
the effect…is that no one wants to pay for work seen online…
fast forward several years.
online is the major media outlet.
tell me you don’t see this coming?
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Posted 11 Sep 2008 at 10:13 am ¶When I was finishing photoschool,a fine art/reportage photographer emailed me threatening to sue over using a photograph of his in a blog of mine. My blog posting was to promote his book. He “made” me take down the posting as a result.
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Posted 12 Sep 2008 at 1:38 am ¶One thing that I think bears highlighting in big, bold red lettering is the following:
Just because something is on the Internet, does NOT make it “in the public domain”!!!
This seems to be a bizarre assumption that a lot of people make; at least this is an argument I see all the time justifying the improper use of other people’s photographs.
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Posted 12 Sep 2008 at 10:33 am ¶#25 I heartily agree. Already a major outlet for imagery nowadays is the web. Photos are purloined and used to illustrate pages selling almost anything whether its holidays or real estate, or simply to provide eye candy to jazz up a page of adverts. Some web pages exist simply to display Google ads and use the purloined work of others as the draw to the adverts.
I’ve issued a number of take down notices to the above type of sites. I don’t mind some one using my images on their personal blog but not if its rich in Google Ads.
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Posted 12 Sep 2008 at 12:02 pm ¶USA Law
”for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright”
UK Law
Criticism, review and news reporting
(1)
Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.
(2)
Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by a sufficient acknowledgement.
(3)
No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film, broadcast or cable programme.
In the UK you cannot use news photographs for free under Fair Dealing provisions.
Bob Croxford
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Posted 13 Sep 2008 at 1:13 pm ¶As a composer of music I have the experience of working very hard, sometimes, to create a work that will musically satisfy myself and my audience. Heck, I go through a lot of ups and downs composing and then I register my work.
How is it that the model involved in a shoot does’nt deserve to share the copyright or at least get a fair shake, if she uses a non commercial shoot of her image to promote herself?
Does she deserve at least the “Fair Use” protection under the law? Why is the photographer the only person credited to be the Creator of such a Work?
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Posted 26 Sep 2008 at 1:03 pm ¶Hello
I use photos of aircraft and modified them, thus creating new machines (combining 2 different machines into one); I usually post them in a website for the sole purprose of illustrating discussons of alternative machines.
It’s non commercial, modifies the original work and does not competes with the original work:
Is this a copyright violation or fall under the fair use?
Thank you
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Posted 01 Feb 2009 at 4:18 pm ¶This brings me to an idea:…
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Posted 29 Jul 2009 at 5:19 pm ¶[... - http://www.aphotoeditor.com is another useful authority of advice. Online Car insurance claims [… -
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Posted 23 Nov 2009 at 4:05 pm ¶Trackbacks & Pingbacks 11
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