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.
