Copyright Industry

Fair Use in Blogging: Can Bloggers Use Copyrighted Images?

Today’s artists and creative entrepreneurs use blogging as a necessary tool to demonstrate thought leadership and capture a dedicated audience and internet following. For artists and photographers, finding photos aren’t usually a problem – they’re just using their own. But what about lifestyle, fashion, and food bloggers, who tend to rely on pop culture images and other media as photo content on their blogs?

With an abundance of photos available on the internet, the urge to simply Google a photo and use it on your website is hard to resist. And while it may seem like everyone’s doing it, that doesn’t make it okay: Those are copyrighted images, and the owner of the copyright can have several different avenues for recourse in order to be compensated for your use of the image.

On the other hand, using a copyrighted image doesn’t mean you’re liable to a photographer or company if your use of the photo fell into certain exceptions under the Fair Use doctrine. Receiving a demand for compensation from a copyright owner doesn’t necessarily mean you have to pay up, as we’ve discussed in our previous article on receiving a Getty Images Demand Letter.

Whether you’re new to blogging or a seasoned internet savant, there are a lot of gray areas when it comes to fair use on the internet. What’s acceptable use for photos found on the internet? What are the risks involved with using someone else’s photos for blogging?

Blogger 101: What is Fair Use?

In most instances, copyright law says that you cannot copy and distribute someone else’s copyrighted works without prior permission from the copyright holder. Permission must be expressly granted through a license, and often involves an exchange of money. The only exception to this rule is the Fair Use doctrine, which allows you to use copyrighted work for certain purposes.Royalties

The fair use doctrine is outlined by U.S. copyright laws, and the U.S. Copyright Office has even created a Fair Use Index of the overwhelming case law on the subject. Courts tend to measure fair use by these four prongs:

  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.

While these guidelines may seem a little complex, they actually provide a bright line rule for adhering to copyright law when posting content on the internet.

It’s also important to remember that fair use is not met simply by meeting one of the four criteria. You will need to evaluate and apply all of the factors outlined in the doctrine because courts will take a balanced approach in deciding whether your use of a copyrighted image constitutes fair use. Though it’s not necessary for you to meet every factor, your use of the image will need to benefit the overall innovating needs of artistic expression and the dissemination of information in today’s internet culture.

A Step-by-Step Guide to Fair Use

The purpose and character of the use of the photo you’re using should generally not be used for commercial purposes, and will constitute fair use if you’re using the image for purposes of commentary, criticism, reporting, or teaching. Generally, that means you can’t use a photo simply to enhance a blog post, or use a photographer’s image of a blouse in order to sell that blouse on your website. But you can use it if you want to explain a technique or report on a new trend. For example, it can be argued that you have used a photo from Milan Fashion Week in order to report on Del Pozo’s Spring collection, and illustrate a particular runway trend through various images.

Satisfying the ‘nature of the work’ prong of the fair use doctrine is a little trickier, and most bloggers will want to stay away from publishing any photos on their site that haven’t already been published elsewhere. But even when they have been previously published on the internet, courts are reluctant to allowuse of the photo when its highly creative in nature, rather than factual. When it comes to images, this tenet can be hard to quantify – you will need to show that your use of the photo had an educational or critical purpose for illustrating a principle, similar to the example above.

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The amount and substantiality of the portion used of the copyrighted work will hinge on the overall content contained in your blog. Generally speaking, if all of your photos are coming from the same source, and you don’t have permission to use these photos, then you could be facing a pretty serious problem. Courts will understand if you’ve used a photo or two in a long blog post to illustrate your points and provide background, but they will not be lenient if it’s clear that almost none of your content is original.

The one exception to this rule are images you’ve re-blogged or copied on sites like Tumblr and Pinterest. These websites’ terms of service grants the site the right to copy and distribute the work and for other subscribers to the site to do so, as well. That means that if someone has posted an image on Tumblr or Pinterest, that image is fair game. However, it’s important to make sure that the original poster was not posting a copyrighted photo that belonged to someone else without express permission, because that would constitute infringement.

Effect of the market is the most complex tenet to overcome, because it basically means that your use of the work cannot affect the work’s potential for sale in the market. Does your use of the image affect the artist’s potential to sell that work? What if the artist already sold the work to a newspaper or publication, and you’re simply re-posting the photo he already profited from? Should artists be compensated again and again every time their image is used? In these instances, it’s hard to show that your use of a copyrighted image doesn’t infringe on the copyright owners’ ability to earn money from this work. There is one exception though, in the form of a landmark ruling of Perfect 10 v. Google. In the opinion of the 9th Circuit, Google’s indexing of images on the internet and reducing them to thumbnail size represented a transformative work that represented fair use. So while copying an image in its entirety may not be okay under the potential market tenet of the Fair Use doctrine, use of thumbnail images on your blog is probably okay.

What Can Bloggers Do to Satisfy Fair Use?

Now that you know the rules, it’s important to stick to these guidelines in order to satisfy fair use and stay out of trouble. First and foremost, you should always give credit to the artist or owner of the image. This includes the creator’s name, as well as other information that will help people find the original work or source. And should the artist contact you and ask you to take the image down, do so promptly and apologetically. While your use of the image may constitute fair use, you’re still infringing on an artist’s copyright, and it’s better to remove the photo than become embroiled in litigation.

In addition, be sure that the majority of the content on your blog and within your posts are original or licensed works. If your blog were to come under scrutiny and it is shown that the majority of your images have been used without express permission, you may have a harder time proving fair use.

Finally, the easiest way to stay in the clear when it comes to using images on your blog is to purchase your photos. Websites like Flickr’s Creative Commons, iStock Photo, and Deviant Art offer licensed images at a very low cost and in some instances, free of charge. In the case of Creative Commons, these photos are still copyrighted, but there are certain restrictions on the way you use them.

Still not sure whether your use of images constitutes fair use? We’re happy to answer any lingering questions, so leave your comments and questions below. Happy blogging!

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at [email protected]

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  • I have a question regarding fair use of images on videos (youtube videos mainly). Is it okay to use copyrighted images while talking over them? For example, talking about how a game developer went to the zoo and saw the gorilas movements to make a video game character (and using the picture of a gorila), or using images from deviant art artists that show a character, and talking about that character or a story that concerns him?
    Would that be fair use?

    Thank you!

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