Think you can use that photo you found on the web? Think again!

It is way too easy to find images on the web. Go onto Google images and you can links to thousands of pictures. But can you use them? Not without permission.

Many people don’t realize that even if an image does not carry a copyright mark, the right to use the image belongs to the photographer. So, you can’t grab an image off the ‘net without permission and you also can’t hotlink to an image on someone else’s site.

What about the concept of “Fair Use”

Fair Use allows copyrighted materials to be used for specific purposes. Fair Use is, however, does not provide a blanket excuse for using copyrighted work without permission and it is far more limited than many people realize.

Fair Use is covered in Section 107 of the Copyright Act.

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the 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.

What does that mean? Doesn’t it say materials can be used for news reporting?

Yes and no. The first factor looks the new work, created by using the copyrighted materials, and evaluates it based on whether it is used for non-profit/educational purposes or is commercial in nature (preference is given for non-commercial use); whether it is used for criticism, comment, news reporting, teaching, scholarship or research (also linked back to the commercial/non profit element) and whether the new work is transformative (giving new meaning to the work) or merely illustrative. For example, if you use a photograph as part of a product review or commentary, you have created something new.  In the case of photos used on http://www.lolcats.com, I suspect that the addition of the captions is considered transformative. However, if you use a photo to support an article, the copy may not have added new expression or meaning to the image.

The second factor looks at whether the materials are worthy of copyright protection. In the case of photography, that actually happens the moment the photographer presses the shutter. Even if a photograph is not marked with a copyright statement it belongs to the photographer until he sells its use.

The third factor looks at how much of the work is used. Ideally you should use as little as possible of the original work — excerpting just enough to make your point. The subfactors include evaluating the quantity, quality and importance of the work used. For example, you can quote from a speech, especially when using the quotes in a new context, but you cannot reproduce an entire book.  With a photograph, that concept is trickier.

The fourth factor considers whether the use of the material will harm the commercial value of the original material to the copyright owner.  In the example above, the website included a photograph on its site that the photographer was selling to similar sites. This has the potential to harm the copyright owner because other people might not feel the need to buy the image either. Depriving the copyright owner of income is usually an indication that the materials do not fall under the Fair Use doctrine.

If you have any concerns about your own use of copyrighted materials, use one of the Fair Use evaluator tools to help you consider your use against the four factors discussed above.

Best Practices “Fair Use” of Copyrighted Materials

If you think your use of materials is “Fair Use” then there are certain protocols that you should follow. The most obvious first step is to ask permission. Many photographers will let you use an image on your blog, especially if you are a “hobby” blog with no commercial interests. Additionally, as was discussed earlier, don’t hotlink to images on someone else’s site. You should upload the images to your own site and then provide a text link back to the source.

I found these “best practices” recommendations on the blog A Photo Editor.

  • Always include the photographer’s 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.

What does this mean for you and your clients?

To keep on the right side of copyright law you should never use a photograph without paying for the use or obtaining permission to use the photograph . . . in writing.

Make sure that when you purchase the use of a photograph that you spell out all possible uses and time periods that the image will be part of your/your clients’ materials. Over the years we’ve found that once an image is incorporated into marketing materials it “pops up” in other places because internal staff doesn’t realize that buying the use for the image in a brochure doesn’t mean that it can be used for an ad, or on the website.

In fact, here’s a real-life example of how a company got caught using an image downloaded from the web — and how much it ended up costing their agency.

Legal lesson learned: Copywriter pays $4000 for $10 photo

http://blog.webcopyplus.com/2011/02/14/legal-lesson-learned-copywriter-pays-4000-for-10-photo/

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