Fair Use of Photography On A Blog

- - copyright

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 Law of the United States of America and Related Laws Contained in Title 17 of the United States Code.

Copyright Term and the Public Domain in the United States, 1 January 2008.

Summaries of Fair Use Cases.

US Copyright Office- Can I Use Someone Else’s Work? Can Someone Else Use Mine?

Let me know what you think.

There Are 68 Comments On This Article.

  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?

    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.

    • @paul,

      In order to receive statutory damages, the copyright must be registered in the US Copyright Office to give notice to the world of copyright ownership.

      Otherwise, if someone infringes on an unregistered copyright, the only remedy to the copyright owner is an injunction.

  2. 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

  3. 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.

  4. @ 1. Paul: Yes unless you work for the government. Maybe I should clarify that the public domain photographs are free to use. I just need to have a look at how that works.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. the cinemascapist

    “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”?

  10. @ 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.

  11. @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.

  12. 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)

  13. 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.

  14. @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.

  15. @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.

  16. Ok so it sounds like the screenshot is a bad idea because it does leave the image without metadata and I was unaware of the penalty for stripping metadata but I suppose it wouldn’t apply in the case where the picture is a part of a complete webpage. Regardless I think photographers would prefer that the copyright and contact info traveled with the picture where ever it went.

  17. 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.

  18. 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.

  19. 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

  20. 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.

  21. 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

  22. 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?

  23. 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.

  24. 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.

  25. #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.

  26. 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

  27. 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?

  28. 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

  29. As a full time freelancer myself, this is a good read. Though I do not write for any other blogs yet I have been approached by a few, unfortunately all of them run as soon as they hear money.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.

  30. Hi,

    My question is about websites which use photos that are clearly copyrighted, but make money from adverts and by being affiliates of betting sites etc.

    Can these sites use images as “fair use”?

    I was thinking about starting a soccer site, so I really want to know. I see sites like http://www.adifferentleague.co.uk wich falls into that category, advertising income, income from betting, but photos I would imagine they claim “fair use” for. Soccerlens.com is another one, though they claim they are a blog unlike the first which says it is a magazine.

    So where do I stand if I start something like them? Can I make money but still use lots of photos for free under “fair use”?

    It seems a real grey area…..

  31. I found one of my photos being misused without my permission last week. I got annoyed and billed the web site as much as I felt i could ger away with. Stupidly if they’d asked me first |I’d have let them have it for a credit..Fools.pat

  32. Great article and really worthwhile aspect of online publishing to get right. With an exponential explosion of requirements for both poor and rich media web content the distribution of visual content is rapidly getting to the point that both the music and film industries reached a few years back. Legislation may not be the most efficient or practical solution, buy does anyone have a better one??

  33. I think it’s hard to know when you can or can’t use a photo. Also, it isn’t always possible to contact the person who took the photo in order to ask for permission.

    More often than not however, it is just people not caring.

  34. Using the ‘fair use’ loophole is a good way to go, but I still believe that taking the picture yourself is the best policy. Unless you’re not very good at taking pictures then buying one from a reputable stock photo site is best.

  35. as i understand UK law the idea of fair use isnt based on commercial gain, ie

    http://slcc.strath.ac.uk/scotslawcourse/ip/ip/copy/wbch4.html

    channel 4 are making money from adverts

    http://slcc.strath.ac.uk/scotslawcourse/ip/ip/copy/hubbard.html

    good old ron!

    I have no law training, im trying to figure this at the moment :)

    The issue is the definition of fair use, if you are critiquing a work then you have the right to use a photo If – by not using it would make it impossible to express your view – , we live in a democracy afterall. However the concept of criticsm must not in any way be promoting someone elses service, or helping to promote YOUR service at the cost of the person/company you critique, afterall the concept of any wrong implies there is a wronged person to start with?
    IE if the conclusion of the critique is that X product is rubbish and Y is great and your site is being sponsored by Y. Yet I guess only a court of law could solve this, to what degree was the editorial judgement neutral and to what degree was the ctitique clouded by being sponsored by Y and to what extent does Y gain from such a critique or not????

    With this all said, it’s not hard to email a photographer or company and ask to use their pictures, for SEO purposes you can always put rel=”nofollow” in the link, however it is the right of free people that they should be able to express a view and that view should not be governed by the choice of someone else….if the photographer was a ***** then does that mean that a critique of 2 pictures that use the same building could not be compared????????

  36. Copyright is a huge issue now with the growth of so many websites and blogs and people not respecting image and other rights in a headlong rush to tart up their site..

  37. I am happy to find this very useful for me, as it contains lot of information. I always prefer to read the quality content.

  38. I recently came accross your blog and have been reading along.. I dont know what to say except that I have enjoyed reading. Nice blog. I will keep visiting this blog very often.

  39. There nothing I can do about them who use my product, I’m a full time photographer myself for local newspaper. And now, I don’t mind if there’s someone, without my copyright, use my photo for their product.

  40. I strongly suggest that you buy a copy of Patricia Aufderheide’s and Peter Jaszi’s book, Reclaiming Fair Use: How to Put Balance Back into Copyright (2011), available at Amazon for under $20. The book is a highly readable (and entertaining) analysis of fair use and the battles over the use of copyrighted material. I am a lawyer and am often skeptical of law books written for a lay audience. This book is amazing in terms of its clarity, depth of thinking, and insight into fair use. Both lawyers and a lay audience will find the book highly useful.

    One of the book’s primary purposes is to provide a history of how best practice guides have come about and how to create them. One thing is for sure, one person stating what best practices are for an industry is not the way to go about it.

    As the two authors point out, a number of foundations have financed the development of fair use best practice guides for particular industries. The power of the guides comes from the development of a consensus through discussion within the industry by industry participants, lawyers, and insurance companies that write E & O insurance.

    Your guide is a statement of your view of the law. It is not a best practices guide as the two authors contemplate because it is not (at least as you have described it) the result of a collaborative effort. It is the process that the authors describe that gives these guides power. The first folks to do this guide were the documentary filmmakers. That story is a fascinating one.

    As the authors also point out, you have to be very careful about porting best practices from one industry to another. What is fair use for one group may not be for another.

    I commend you for thinking along the lines of a best practices guide, but you are not there.

    Good luck

    Jack Siegel (I don’t know either author and have no financial interest in the book. I first learned of the book from an article in the Chronicle of Higher Education).

  41. I know how infuriating it can be to have someone take the digital work you made and place it on their website without asking and even take credit for it! That’s how the internet is at the moment though. It’s kind of like the wild wild west. I would be interested to know what percentage of online copyright infringement instances are actually discovered of prosecuted.

  42. These rules seem fine to me personally. They may in fact be the best method to increase traffic to the website of the photographer.

    I’m really disturbed by the proliferation of websites that contain only photos with mysterious provenance. Sometimes I recognize the photos as the work of photographers I know, although their names are not to be found anywhere on the “borrowing” website. Some of these websites contain the codename of their “collector,” although the real name is kept confidential. I’m not sure what would motivate people to do this. Although I hesitate to recommend draconian legal measures being taken against these sites, I would hope that those who visit these websites recognize them for what they are and refrain from recommending them via social media. When they compete with legitimate, law-abiding sites, all legitimate photographers suffer.