Home | Copyright | Fair Use in Blogging: Can Bloggers Use Copyrighted Images?
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.

blogging

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]

32 Comments

Click here to post a comment

Your email address will not be published. Required fields are marked *

  • I run a non-profit website analyzing art. I’ve mostly done old masters, but there are some contemporary artists whose work I’d like to highlight. Can I use images of their paintings? Thanks!

    • Hi Amy, if you take those images in person or can find a royalty-free image online, then yes. Otherwise, you’ll need to get permission from the artist. Hope that helps!

  • Hi Nicole- I am starting a blog and it will focus on my fashion and my dog. My dog’s name is Luke Skywalker. Am I infringing on any copyright or trademark laws by referring to him by this name? I also plan on doing my hair like Princess Liea for a photo shoot and posting it on the blog. Additionally, do I have to give credit to the clothing brands in my photos (taken by me)? What are the rules here?

    • Hi Dominique, images taken by you are your intellectual property. The same is the case with the way you style your hair, or name your dog. You can certainly link to the brands you’re wearing, but its not required.

  • Hi Nicole, My blog (FB page, Twitter and Instagram) will talk a lot about one specific television show ( The Great British Bake Off ). May I use images of the contestants from their website or images from the TV show on my blog? Thank you!

  • Hi Nicole, I write a blog for our condo that we rent out to vacationers about things to do , upcoming events, etc.. this weeks blog is about the upcoming Pepsi Gulf Coast Jam and need a picture of the concert festival. Was curious if I can use pictures I see from past Gulf Coast Jam festivals?

    • Hi Tonia, the best thing to do is source Flickr for those images. When searching for photos, make sure you choose “Commercial Use Allowed.” These photos can be posted to your blog as long as you attribute the photo to the creator – just use the name attached to their Flickr account. Hope this helps!

  • Hey, I was wondering if I write an article on a particular gadget can I use the photos from the manufacturer without committing any infringement as many tech blogs uses product images

    • Hi Nirjon, it all depends on how much of your article contains images of these products. Generally speaking, I would always seek permission from the manufacturer.

    • You usually have to pay for Shutterstock images, as they are stock images. You can use those images without giving credit to the owner.

  • Hi. I recently wrote an article about 5 photographers who has personally influenced me. I want to include some of their works to critic it and generally explain why I like the photographer. Will that be qualified for fair use? I couldn’t publish it on my blog yet because I’m not sure if it would be legal.
    Hope to hear from you. Thanks.

    • Hi Ryan, since you’re highlighting their work because you think it’s great, why not reach out to them and ask for permission to use the work?

  • Hi,
    I want to use food images posted on yelp and curate them into articles to help people discover good food. I plan to use thumbnails and link the image back to yelp but most of the images would be from yelp. I am linking back, not affecting revenues, copying partially, using work for commentary and public awareness. Should i do it..?

    • While generally thumbnails are considered fair use, this is very murky territory, especially considering Yelp’s deep pockets. I would proceed with caution, and if you’re issued a take down notice, comply immediately.

  • What about the usage of photos/videos from the celebrities Instagram/twitter accounts? Are those pics that can be used on my blog if reporting a story pertaining to the post?

    • Hi Tamara, Instagram and Twitter’s Terms of Services specifically allow for users to repost the content found, so you are likely in the clear on this one. However, I’d urge you to consider that celebrities have much deeper coffers than the average blogger, and a take-down notice or demand for the use of their images can always arise.

  • Hello Dear Nicole, I really appreciate your nice posts 🙂
    I have a simple query please, at the meantime i run a blogger which is mainly focused on posting some info and stuff about various companies, so is it fair to use their logos and include them into my posts and surely all of these logos are linked to the holders .. i mean the owners of these logos?

    • Hi Ouka, logos are a bit tricky because generally speaking, the owner of the copyright has assigned that ownership to the company they designed it for under a work-for-hire agreement. In addition, its unlikely that a logo would be copyrightable under current copyright law, so it’s probably okay to continue using them.

    • Hi Minji, book covers are copyrightable, and the copyright assigned to them may not even belong to the publisher. In practice, of course, is another story. If you’re in the practice of doing this regularly, and haven;t received a take down notice, then you might be in the clear.

  • Thanks for all the helpful info! But wondering… I’m​ planning on writing a baking blog that involves me creating everything in this 1 particular cook book …Serving as a kind of review of the recipes and my process of going through them. Am I breaking any copywriting rules if I have images from inside of the book of a completed recipe alongside what I cooked as comparison if I’m naming the book and authors throughout? Can I recommend readers to buy it on Amazon? Should I inform publishers of the book of this?? Thanks for all the help!!

    • Hi Harika, you can’t use the images from the cookbook in your blog posts without express permission from the authors. You can certainly take photos of your cooking, though! Hope that helps.

      • I’m wondering about using images from a specific venue of their venue in a blog post that reviews the venue. IE: I am reviewing the ice cream shop down the street, can I pull pictures from their website to use in the blog post that describes what the venue looks like?

    • Hi! Good Day. I have this new blog for our course requirement. I’m putting/copying images from different websites to illustrate some people of the past because we are studying about history, life and works of a specific person. Moreover, I am describing that picture and giving information to that particular images. Am I breaking some copyright rules or do i need to put the sources or references at the end of a blog post?

      • Hi John, as a best practice, you should always cite to your source. Depending on how old these images are, where they’re coming from, etc., you may be violating some copyright requirements.

  • hi, I review movies on my blog and usually use a poster and a few shots from the movie to accompany the review. sometimes I add fun commentary to the picture – I usually use what I find on line and I always cite the source. my blog is non profit and I rarely use images from one source. I would presume this would consitute fiar use – whar do you think?

    • Hi Edith, it is likely considered fair use, but I would be weary and comply with any take-down notices issued.

  • 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!

    • From what I understand, the Deviant Art images would be fine, since you’re using them to comment on them: It constitutes criticism and education. As for You Tube videos, I have no idea, but that’s a really good question!

{{Privy:Embed campaign=133844}}

The Latest From Artrepreneur

  • Building [A Career] on Set: An Interview with Michael Wylie

    Emmy award-winning production designer Michael Wylie talks to Artrepreneur about climbing the ranks in the TV business, working with agents, and why aspiring set designers should focus on their work ethic. The post Building [A Career] on Set: An […]

  • Download Our College Guide, Land Your Dream Career

    Being successful in college is about more than getting good grades. That's why Orangenius and Creative Circle have partnered to create the ultimate college guide. Read on to download your copy of "How to Adult: Getting From College to Career." The […]

  • A Creative’s Guide to Setting Freelance Rates and Pricing Work

    Determining how to value creative work is often an unclear equation with a complex set of variables. Artrepreneur offers guidance on setting your own competitive freelance rates. The post A Creative’s Guide to Setting Freelance Rates and […]

  • How to Land Media Influence as a Working Artist

    Desperate to see your work appear in leading art journals and magazines, but can't afford to hire a public relations firm? We review how the working artist can gain media influence through targeted outreach efforts. The post How to Land Media […]

  • Hiring for Your Art Business? Seven Steps for Success

    Hiring the right creative people for your art business is no easy feat, but following our formulaic approach to hiring can make the process simpler. The post Hiring for Your Art Business? Seven Steps for Success appeared first on Artrepreneur. […]

  • Art Dealers Should Make Full Disclosures When Selling Artist Multiples

    New York law affords special protections for buyers of artist multiples, which implies hefty requirements and potential liability for art dealers. Artrepreneur reviews why gallery owners should be careful when selling multiple editions of works. The […]

  • Making Sense of An Artist Engagement Contract

    Whether you are a painter doing a commission or a musician hired for a performance, your artist engagement contract will determine the role of each party involved. Get to know the standard terms to look out for when signing an artist contract. The […]

  • The Working Artist’s Guide to Mastering Art Inventory Management

    Art inventory management is not just for the gallery business. Along with recommendations on the best available art inventory software tools, Artrepreneur reviews the basics of developing a successful inventory management system. The post The […]

  • How Should I Structure My Freelance Resume?

    Struggling to determine how you should structure your freelance resume? Two resume experts give their advice for designing a creative resume that lands you the gig. The post How Should I Structure My Freelance Resume? appeared first on Artrepreneur. […]

  • Do I Need a Contingency Plan for My Art Business?

    Presented by Orangenius and [email protected], the first installment of the SiriusXM 'Business of Art' radio series interviews Jenifer Simon, Program Director at CERF+, a non-profit organization dedicated to artists disaster relief. The program […]