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Copyright Fair Use and Online Images

Copyright and Online Images

Just because it’s on the internet doesn’t mean it’s fair to use. You’ve heard the adage that a picture is worth a thousand words, but when that picture is protected by copyright, the picture is only worth three words: cease and desist.

OK, that’s kind of a lawyer joke. But it illustrates how protective people are about finding their images used online without permission.

Copyright laws were established not to give the author the right to deny their work to other people, but instead to encourage its creation.

Article I, Section 8, clause 8, of the United States Constitution states the purpose of copyright laws is “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

It’s a delicate balance between the rights of the creator and the public’s interest. When in conflict, the balance tips more heavily toward the public’s interest, which is often contrary to what the creator believes to be fair or just.

This article will cover exactly what copyright is and what it covers.

And then we’ll look at the concept of fair use as it pertains to using images online. The goal here is to better understand how to use images others create in a way that is both respectful of the author’s ownership rights and allows others to use it.

What Is Copyright?

Copyright attaches at the time of creation and there is no requirement to use the “circle c”.

Copyright is a federal law of the United States that protects original works of authorship. A work of authorship includes literary, written, dramatic, artistic, musical and certain other types of works.

Copyright attaches as soon as the original work is created, and applies to both published and unpublished works. As soon as you type words, click the shutter on your camera (or, for many of you, hit the home button on your iPhone), apply paint to canvas or paper or lay down tracks for your next hit, you’ve got a copyright (with some exceptions).

Copyright is an automatic right and does not require the author to file special paperwork, as is the case for trademark and patent. Registration is required to enforce the rights, but as a matter of right, an author is not required to register anything to get the right to use the “circle c,” showing the work is copyrighted.

One of the many terrific things about copyright is that it comes with a host of exclusive rights that allow the owner to do or authorize a number of things and exercise substantial control over his or her work. The copyright owner has the right to do four things (called exclusive rights):

  1. Reproduce the copyrighted work;
  2. Display the copyrighted work publicly;
  3.  Prepare derivative works based on the copyrighted work; and
  4. Distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

Source: 17 USC Section 106.

Copyright does not apply to works in the public domain; words, names, slogans or short phrases (those may have protection in trademark law); blank forms; works that are not original; and government works. This is important to know because if the work is not protected by copyright, then there is no concern whether the Fair Use Doctrine will apply to allow you to use the work.

As online content creators, curators and managers, you know the value of using images to get the reader’s attention, add a visual component to commentary, illustrate using an infographic or any of a host of benefits. Using the correct image can definitely take a post from drab to fab very quickly. It can also help tell a story that words alone can’t.

But unless you’re a photographer showcasing your own work, chances are you’ll need to use work created and owned by someone else. There are plenty of sources. While the general rule is that you can’t use a copyrighted work without express authorization from the owner, there is one significant legal construct that allows millions of people every day to see and share images online.

Please keep in mind that stock photo services and creative commons licenses may not be subject to fair use due to the rights they carry.

While stock photo services require you to pay for a license and creative commons licenses confer the right to use an image under certain circumstances they DO NOT restrict, reduce, or limit any rights with regard to exceptions or limitations under copyright law such as Fair Use or fair dealing. For example, a stock image may be covered by Fair Use if it’s use meets the criteria for Fair Use even if the stock image company doesn’t think so. However, many stock image companies are very aggressive in enforcing their rights and ignore the doctrine of Fair Use. A creative commons licensor may not understand that Fair Use is still applicable and exists alongside their license and may choose to pursue what is a legitimate use.

What About Fair Use?

Fair use is not the same as free use. Fair use is a legal exception to the exclusive rights an owner has for his or her copyrighted work.

It has little to do with what we may think is fair, and everything to do with keeping the balance tipped in favor of the public interest. It’s a delicate balance, mind you, but one that often leaves the copyright owner wanting to scream.

Fair Use is a balancing between protecting the creator and promoting the interests of the public.Balancing

The purpose of the Fair Use Doctrine is to allow for limited and reasonable uses as long as the use does not interfere with owners’ rights or impede their right to do with the work as they wish.

Since this discussion will only pertain to use of images online, I will use examples specific to this.

A classic example of fair use of an image to use online is product reviews. If you want to review a book, a new piece of technology, a food product or whatever widget, you’ll likely want to include a photo. But not some washed-out, overexposed, shadowy, laundry in the background kind of photo that you’d take.

So you head to the manufacturer’s website and right-click that image and save it to upload to your site. A photo will not substitute for the actual product, so the owner’s rights should be very minimally affected. Therefore, your right to use the copyrighted image would likely be permitted under fair use.

Fair use is in place for the greater good, to allow copyrighted works to be used without permission for the benefit of the public. Imagine not being able to use images of a dead dictator to tell the story of how he died. Or not being able to talk about fashion without showing the outfit you’re referring to.

However, there are limits and only a court has the final decision-making ability. Section 107 of the Copyright Act states:

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—the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

Source: 17 USC Section 107.

All four factors are used in determining fair use, with the first (the purpose and character of the use) being the most important the court will examine. When it comes to photographs, copyright law has a long-standing deference to permit a photographer control over the first time an image is made public. In this discussion, we’ll assume that you’re not hacking computer systems or digging through rubbish bins looking for non-public images.

One of the issues with photos is that using just part of it is, well, a bit ridiculous. This is the third  factor courts will look at (how much of the work is used); however, it is often a very significant element of whether fair use exists.

Unlike the written or spoken word, where excerpting a portion to illustrate is possible, with images it is usually the whole that is necessary. A partial photo, unless you’re doing some kind of guessing game, does not portray the level of professionalism you’re likely going for.

Same with using a very low-resolution option. Not only does a low-res image look bad on your site, the image creator (whether photographer or designer) probably doesn’t want a bad-quality image circulated, as it could impact his or her reputation.

5 Things to Think About Before Using Copyrighted Images

55 questions to consider when using copyrighted images online.

So you’re likely thinking this is insane and who has that much time on their hands to figure out all of this just for an image on a blog? In reality, though, answer question 1 of the 4-part fair use test and you’re likely to get a very good sense of whether you’ll have a leg to stand on if challenged.

#1: Do you understand the term fair use? Just because you provide attribution and/or a link back to the original doesn’t mean you’re free and clear. Fair use has nothing to do with attribution. That’s an issue related to plagiarism, which is different from copyright.

Fair use basically means you’re allowed to infringe on someone’s copyright and they can’t do anything about it. If your use is covered by fair use, you don’t have to provide attribution anyway (although it would be nice).

#2: Why are you using the image? If it is “…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…” you’re on the right track.

If you’re just using the image to pretty up a post, then think twice; or better yet, get permission or buy a stock image.

#3: Have you transformed the image? If the new work which incorporates the copyrighted image is a “transformative work”—what you created no longer resembles the original—there is a greater likelihood of finding an exception to copyright infringement.

Are you taking an image and incorporating it into an infographic? Is the image now part of a video used for one of the reasons set forth in the Copyright Act?

#4: How much of the image are you using? If you’re using a thumbnail and linking to the original location, there is greater likelihood of finding fair use than if you just post the original image. If you’re doing a post about facial features and are just using a portion of the face from an image, you stand a better chance of arguing fair use than if you used the entire image.

#5: Are you willing to risk your site being taken down, getting a cease and desist/bill/DMCA or being sued? The Digital Millennium Copyright Act (DMCA) provides very powerful options for a copyright owner to protect his or her works in the digital space. By hitting “publish,” you may be opening a can of worms.

In Summary

When it comes to photos, when in doubt, assume it’s subject to copyright and don’t use it without the appropriate permission. What it comes down to is that if you need to use another person’s image, make sure it fits clearly into one of the protected purposes or seek legal counsel if there is a significant investment of money or time in your project.

Fair use may be an exception allowing you to use copyrighted images, but chances are you’ll be in for a discussion or possibly find your site taken down by your host if the copyright holder disagrees. Unfortunately, there are no significant cases that establish hard-and-fast rules when it comes to fair use and images used on the Internet.

However, photographers and graphic artists often make a living from selling or licensing their work and if we all just poached what we wanted, we’d be circumventing the law and interfering with their right to control how they distribute their images.

Copyright fair use has been fought over when it comes to using words and images in print publications. The Internet, though, is still very much in its infancy when it comes to fair use guidance.

Without bright line rules, we’re each left to interpret laws that were written long before digital communication was ever imagined and did not contemplate the ease of sharing that exists today. While it may be a remote possibility that the average blogger will be sued for copyright infringement relating to an image, bear in mind that you may be the proverbial “straw that broke the camel’s back.”

If you’re considering taking images from large agencies, they have legal teams that do nothing but look for infringing uses. There are inexpensive ways to search for images online, even if you change the file name. And if you’re thinking you’ll just crop the image so you can’t see the copyright notice or other identifying information, think twice about that because the penalty for doing so is very stiff— up to $25,000, plus attorney fees and damages.

There are many resources for free images, whether public domain, licensed creative commons or inexpensive stock images, so you really shouldn’t need to use copyright-protected works for beautifying your site, creating that cool presentation or making a video. But if you really have to have that image, ask first. You’d be surprised at how many people would gladly grant permission for use of their images.

Fair use doesn’t mean fair game, but it’s there to allow for uses that will benefit society and the public good. Don’t be afraid to use images. Use this information to make good decisions and you’re likely to be just fine. Always, though, if in doubt leave it out (or get permission or ask a lawyer).

What do you think? Leave your questions and comments in the box below.

 

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. The previous post, for which I am the author and copyright-holder, was originally published at Social Media Examiner in November, 2011

By | 2018-09-01T14:41:19+00:00 November 23rd, 2011|Business Law, Copyright, Social Media|120 Comments

120 Comments

  1. Stop Lifting Photos! {Blog Law & Ethics} August 27, 2012 at 9:26 am - Reply

    […] Copyright Fair Use and Online Images […]

  2. Vance March 5, 2013 at 3:27 am - Reply

    Hi there, You have done an incredible job. I will definitely digg it and personally suggest to my friends.
    I am sure they’ll be benefited from this web site.

    • Bianca October 28, 2013 at 3:09 am - Reply

      Too many theives out there.The Association Of Illustrators in the UK is trying to stop this and are lobbying.All creatives need to support.

  3. […] In addition to public domain images, creative commons licenses are another way to source images and graphics. But, again, you need to know what each of the licenses means and choose images that permit commercial use. If you can’t get permission and there is no Creative Commons or public domain work suitable for your needs, your next avenue is to determine if you can use another’s work under the Fair Use doctrine. […]

  4. 5 Top Legal Issues for Authors and Self-Publishers | Authors & Speakers Network Blog with Larry James March 20, 2013 at 8:09 pm - Reply

    […] In addition to public domain images, creative commons licenses are another way to source images and graphics. But, again, you need to know what each of the licenses means and choose images that permit commercial use. If you can’t get permission and there is no Creative Commons or public domain work suitable for your needs, your next avenue is to determine if you can use another’s work under the Fair Use doctrine. […]

  5. […] of Saving for Someday breaks down copyright for us. Super simple guide. Copyright and Online […]

  6. The Best Ways to Be Sure You’re Legally Using Online Photos March 26, 2013 at 9:16 pm - Reply

    […] complex parts of Copyright law. So complex that there are very few cases to look to for guidance. Copyright Fair Use for online images does exist, just not in the way most people believe it […]

  7. Wgillyboo March 26, 2013 at 4:22 pm - Reply

    Great article! Easy to understand and very knowledgeable. I was just learning about fair use for an education class and stumbled on this article. 🙂

  8. The Best Ways to Be Sure You’re Legally Using Online Photos | Tips for the Unready March 27, 2013 at 2:32 pm - Reply

    […] complex parts of Copyright law. So complex that there are very few cases to look to for guidance. Copyright Fair Use for online images does exist, just not in the way most people believe it […]

  9. TsuKata March 27, 2013 at 10:40 am - Reply

    Thank you! This is a terrific summary. Thanks for pointing me to it from LH!

  10. Kriss April 5, 2013 at 6:15 pm - Reply

    I’m about to launch a site which will include a lot of product reviews but am still uncertain about some of the fair use/copyright issues. Where possible I’m using my own photos or ones carefully chosen with appropriate CC rights. But, for ex, if I’m reviewing a book – and own it – can I use close up photos of the cover or inside? Do I have to become an affiliate in order to use a brand’s photos without worrrying about copyright infringement? And, thank you for an excellent article. I found your site – and lots of useful posts – through Blogging with Amy.

  11. […] that data can be very costly. If consumers or users are able to engage on your platform or share images or video, consider those factors and determine what information you want to collect and what information may […]

  12. Natasha June 2, 2013 at 5:06 am - Reply

    Hello,

    This is a great article. I found it to be immensely useful.

    I am a little curious (maybe also confused) so if you could clear up the following for me I would really appreciate it!
    I am currently considering creating a fansite for a celebrity – one which would be a one-stop-shop kind of deal where media and content from various places is categorised so they are easy to find for other fans. This would be non-profit, and purely for archival and news reporting purposes in specific regard to this particular figure. I realise that having images as thumbnails which redirect to official source may be the best way to go, however have not figured out how to work with videos (was thinking embedded videos which can lead to original sources – like youtube videos on most websites).

    Would this be okay legally? Under fair use? If not, we are willing to put the time in to contact each source directly and ask for permission. However, it is simply a fansite with no commercial purposes and the fees for domain and hosting are all out of our own pockets.

    Any advice would be most appreciated 🙂

  13. […] public domain, you should assume it’s covered by copyright. And while there are instances where copyright Fair Use may allow you to use their image, chances are it doesn’t. And while Creative Commons licenses are […]

  14. […] Copyright Fair Use and Online Images […]

  15. […] Copyright Fair Use and Online Images […]

  16. Paige September 4, 2013 at 3:36 am - Reply

    Thank you! I’m really considering blogging just for the simple fact that I’ve always loved writing. I’m also forever having ideas about things to write about that I sure wish I would have had someone tell me at some point! I just have no idea where to begin, especially with legalities & professionalism!

  17. Ryan April 2, 2014 at 10:20 pm - Reply

    Ok question, does downloading something for a desktop wallpaper fall under fair use?

    • Sara April 9, 2014 at 12:15 pm - Reply

      In most cases it does not. But since Fair Use is a case-by-case determination there may be instances where it is.

      • Kevin May 31, 2017 at 9:16 am - Reply

        Hi, Sara

        Quick question if you take images from google and comment directly on the image within your blog post … “look at what Kim Kardashian is wearing in this image.” do you think this would be considered fair use case?

        • Sara Hawkins June 3, 2017 at 10:41 am - Reply

          Definitely on of those ‘it depends’ answers. Since Fair Use is very fact specific, in one instance what you describe may be a valid Fair Use while in another it may not be.

      • Larry Freda August 23, 2017 at 6:23 am - Reply

        It may not be fair use. But is it illegal ?

        • Sara Hawkins August 30, 2017 at 9:59 am - Reply

          Before you even get to a discussion of Fair Use, copyright infringement has to be established. If copyright infringement is not established, there is no need to get to a discussion of Fair Use since Fair Use is an exception to copyright infringement.

          Thus, if you get to a discussion of whether Fair Use would or would not apply it has already been established that the unauthorized use is an infringement and thus, illegal.

  18. […] Media Lawyer Sara Hawkins on Fair Use, Copyright and Online Images. Sara also wrote about the difference between copyright and trademark on June 9, […]

  19. Media Blush (@mediablushtweet) October 3, 2014 at 11:02 am - Reply

    Thank you for this information. I am currently editing images for my blog mediablush.com and I was worried about not being able to use the imaes and videos from the t.v. shows that are listed on my website.

  20. lsaradelic October 27, 2014 at 3:18 pm - Reply

    hello!!
    what if the photos are OF me? and i want to use them but i did NOT take them myself. This is not for marketing or anything else.

  21. Πνευματικά δικαιώματα για online εικόνες - OnlinEffect December 12, 2014 at 6:01 am - Reply

    […] των εικόνων αποφάσισα να μεταφράσω το άρθρο Copyright Fair Use and Online Images της Sara Hawkins (με την άδεια της ιδίας!) που θα λύσει […]

  22. […] Here is Attorney Sarah Hawkins’ definition: […]

  23. joshuakeithhupp April 11, 2015 at 2:06 pm - Reply

    I have a question I am using a url to get the favicon from online websites. Would it be safe to do so? I want to use it for a blog display nothing bad or defaming.

    http://www.aheil.de/2012/10/19/how-to-get-the-favicon-ico-from-any-page/

    If you use this link and change what the domain= then it will automatically get the file from the website.
    Paste this to try it– http://www.google.com/s2/favicons?domain=www.wordpress.org

  24. Theresa Rose April 16, 2015 at 4:31 am - Reply

    My husband and I live in retirement complex. We run a quiz which includes questions and a picture quiz. My husband takes the pictures from the web. These consist images of famous people etc. We reproduce these images through our printer as handouts for the participants in the quiz. No money is exchanged as it is just for fun. Could there be a problem with this, regarding copyright.

  25. Susie April 26, 2015 at 8:42 am - Reply

    There are a lot of us online, who make planner pages. I was told that I can’t copyright forms and planner pages are considered a form. Is this true?

    • Sara Hawkins April 26, 2015 at 9:29 am - Reply

      Susie,

      Blank forms are not protected by copyright. Despite these forms often taking a great deal of time to create, the general rule is that they do not contain a minimum level of original literary, pictorial, or musical expression. While there may be exceptions, those exceptions would need to seek registration and a determination they are sufficiently original to be protected by copyright.

      Sara

      • Susie April 26, 2015 at 11:59 am - Reply

        Wow! So anyone can recreate Franklin Covey’s planner pages and give them away for free and usurp their business and income? (this is the sound of frustration) That is what is happening to me right now with my most popular planner page. And the person/company doing it is doing it to many others.

  26. William May 1, 2015 at 2:11 pm - Reply

    I recently had a post removed in a forum because I compiled a group of pictures copied from Google Search which the mods decided breached copyright. I argued that the images were used under the fair use public domain understanding and were being used to answer the question “Can you document with evidence the damage this has allegedly done?” which followed the question “Can you name any other doctrine that has done as much damage as this one?” The subject was the doctrine of Hell and I thought the fastest and most graphic way to answer the question/provide the documented evidence was to compile images of human inhumanity and other behaviors I think are a ripple effect sourced with the belief in Hell…and a G_D which sends souls to such a punishment. Pictures do indeed say a lot more than words. I would have thought that if Google uses copyright images in their search engines than such would constitute public domain and fall under the fair use. Google is using the images fairly yes? Therefor why can;t I reuse those fair used images to use them fairly in a forum (or for that matter – a social network) setting?

    • Sara Hawkins May 4, 2015 at 4:39 pm - Reply

      William, you ask a very important question about being able to piggyback on another user’s Fair Use claim. Unfortunately, Fair Use doesn’t work that way, especially in the situation where Google’s use of thumbnail images is deemed fair use. Google’s use (and any other search engine for that matter) of images for search display purposes does not make the images part of the Public Domain in the legal sense of the word. Search engines are permitted to use thumbnail images under the Fair Use doctrine of Copyright due to case law and judicial review. Those thumbnails do not change the copyright status of the original images.

      As to your second question about why you can’t “reuse” the images, it’s because Copyright law applies to each use and Fair Use is not a doctrine which continue to transfer that right to subsequent users.

  27. Stella July 29, 2015 at 3:40 pm - Reply

    My question is. I am a Sons of Anarchy fan and I make my own personal cups from pictures I located on Facebook or on Photobucket etc. I made decals from the pictures and made cups. I posted samples of my cups and people want to buy them. I’m afraid to sell them because I don’t know if they are copyrighted or I can get into trouble. I am a disabled women and I don’t need any lawsuit issues? Can you please advise.

    • Sara Hawkins July 30, 2015 at 6:28 pm - Reply

      Not legal advice, simply legal information: Most likely Sons of Anarchy images, as is the case for most all television shows, are copyright protected and owned by the creator. Taking a copyrighted image of a popular television show and creating a product to sell is likely to be copyright infringement. And in the case of a show as popular as Sons of Anarchy would likely bring with it legal action and potentially very large legal bills and damage award.

      • Alex December 20, 2017 at 11:30 am - Reply

        Hello Sara,

        I’ve been looking for a good answer to a question that is somewhat related to Stella’s comment. If I were to print out game covers for my own personal use with no intention to sell, would this be ok? I simply just want to use them for display an organization and nothing else.

        • Sara Hawkins December 22, 2017 at 6:23 pm - Reply

          In theory a copyright holder has the exclusive rights to produce or reproduce their work. However, there is no uniform response about the theory of a lawful personal use claim.

          In reality, though, the copyright holder would need to find out about the use to determine if they want to pursue legal action. This was the issue a decade or so ago in the music industry. Although, it was becoming easier to track music use.

          While I don’t advocate engaging in illegal activity, it’s up to you to determine what the risks are. It’s like the decision to speed. Speeding is illegal but perhaps you speed knowing the risk of being caught is low and even if you’re caught the consequence is manageable.

      • Alex December 20, 2017 at 3:18 pm - Reply

        Hello Sara,

        I have a question similar to Stella’s. If I wanted to print off game covers for my own personal display and organization and with no intent to sell, would this be ok to do?

  28. earthling3 October 9, 2015 at 11:05 am - Reply

    In 2009 I created a website with 20 articles I wrote that were based on lectures I have given for graduate students in environmental studies and related subjects. The website was intended for nonprofit educational purposes. I included in it a page titled “About This Site,” in which I included this Fair Use notice:

    “Fair Use” Notice

    This website contains copyrighted material, the use of which has not always been specifically authorized by the copyright owner. Dharmagaians.org makes this material available in order to advance the understanding of environmental, political, economic, scientific, psychological, spiritual, and social justice issues. We believe that this constitutes a “fair use” of the copyrighted material as provided for in section 107 of the US Copyright Law.

    In accordance with Title 17 U.S.C. Section 107, the material on this site is made available without profit to those who wish to use the included information for research and educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use this copyrighted material for purposes of your own that go beyond “fair use,” you must obtain permission from the copyright owner. If your copyrighted material appears on this web site and you disagree with our assessment that it constitutes “fair use,” contact the site administrator: earthling@dharmagaians.org.

    I also had a page titled “Services” in which I offered “Dharmagaian Consulting” for a fee. I did not specify a dollar amount for a consultation, I simply asked interested people to write me for a fee schedule. However, I did not create a business called Dharmagaian Consulting. I have been a teacher for 30 years and have never consulted for a fee, and never made any money from my website. The website was intended to be a give-away of my own accumulated wisdom and experience “for the benefit of all sentient beings,” as clearly stated on the About page.

    Now, six years later, I am receiving extortion letters from License Compliance Services (LCS) on behalf of Science Photo Library Ltd. They want to charge me hundreds of dollars for the use of one image: a one-dollar bill with an image of George Washington holding his head with a freaked-out expression. That image appears on hundreds of websites when you do a Google search. LCS has addressed its letters to Dharmagaian Consulting and assumes it is a business. But there never has been a business by that name, at least not under my direction.

    As soon as I received the first LCS letter, I removed the Dharmagaian Consulting page as well as the image from the page it was on. LCS never contacted me about the use of that image before it notified me that I owe it money. The second letter said that removing the image does not resolve the matter.

    Would taking down the whole website resolve the matter?

    • Sara Hawkins October 19, 2015 at 3:30 pm - Reply

      Use of copyrighted materials without permission is infringement. If there is an exception, Fair Use as you are mentioning is one, that doesn’t mean the infringement goes away it just means that the infringement is permitted. However, the application of Fair Use is often disputed between the parties and it becomes a battle.

      Taking down the image or website does not remove the infringement. It stops it from continuing, but does not make the prior infringing use go away. Many agencies manage the license of images and some are more relentless than others when it comes to pursuing collections. These agencies are not collecting damages. Damages are awarded by a court. They are collecting license fees and, as such, they can determine what the fee is with respect to the image. That doesn’t mean they’re right. They still have to follow the law when it comes to pursuing infringement outside of a courtroom setting.

      You may want to read more about it or hire someone to help you resolve this matter.

  29. Amanda Hund November 29, 2015 at 9:18 pm - Reply

    Hi Sara,
    Thank you for this. This is the clearest explanation regarding Fair Use that I’ve seen ANYWHERE.

    I’m hoping you will be willing to answer this question: If a student uses copyrighted images in an educational context, to create a newsletter when they are learning Adobe Illustrator, for example– is this covered under Fair Use? What if they go on to use this newsletter as part of their portfolio to try to get a job? Does this then make it a commercial use and then no longer Fair Use?

    • Sara Hawkins November 30, 2015 at 5:29 pm - Reply

      Amanda, Thank you for your kind words. Fair use determinations are always a bit challenging because if the copyright holder wants to pursue an action despite the user asserting a Fair Use claim they can. Courts often don’t rule on the average case because it gets settled. In the example you describe, using a copyrighted image as a placeholder in an unpublished newsletter as part of learning a new software program in school, Fair Use would very likely apply. Using that newsletter as part of a student portfolio to get a job may still be Fair Use. A student portfolio is not likely to be considered commercial use, although there may be instances in which it is. When using a copyrighted image, though, regard of Fair Use, always give credit to the author/creator (especially in an academic setting).

      • Amanda Hund November 30, 2015 at 10:25 pm - Reply

        Thank you so much, Sara.

  30. Jim D. February 10, 2016 at 11:46 pm - Reply

    Hi Sara, I’m starting a technology blog where I would report on the latest news and gear. I’d like to be able to use images of whatever gadget I’m writing about. Would it be safe to use images created by the company without their permission? Would it be considered fair use to use anyone else’s image of the product, as I would basically be reporting on this product as a news story? Also, another issue is that although the blog is solely for reporting or commenting on new gadgets, it would be under my business website. Am I still safe to use others’ image, or even embed a YouTube video from the gadget company?

    • Sara Hawkins February 18, 2016 at 1:29 pm - Reply

      Jim,

      While it may be Fair Use to us an image by another person, you’d have to be willing to deal with them disagreeing and filing a takedown notice and challenging your position. Since Fair Use takes into consideration the specific use, it’s impossible to say that any one particular use of an image on your blog would definitively be covered by Fair Use. The structure of your blog/website would be examined to determine if an allegedly infringing use is covered by the Fair Use exception.

      Almost all tech companies have a press area on their website where they make images and other press materials available. Each company has a different protocol as to how they grant access to protected content but you can investigate that process. If there is a public area with press-approved images you can find out the rules regarding those uses.

      Embedding of public YouTube video is granted through a user license which allows third-party website to post YouTube videos that are embedded using the YouTube embed functionality.

      It’s nearly impossible to say if you’d be safe to use others’ images. Anytime there is unauthorized use of copyrighted materials there is a risk of liability. That’s something you’d have to evaluate on a case-by-case basis.

  31. Ron Manera February 18, 2016 at 1:17 pm - Reply

    Great article Sara! Question: If “fair use” includes “news reporting,” does that mean I must be reporting on the image itself – or can I use the image to illustrate a news story on some other topic? For example, if a photojournalist snaps a picture of, say, Bernie Sanders for the NYT – and I grab that image off the Internet and use it for my own story on Bernie, would that constitute “fair use?” It is news reporting… But I don’t think I can use the image. 2nd Question: If I heavily modify an image, turning it into a cartoon or a caricature, is that derivative work “fair use?” One could detect the source image in the transformed work, but wouldn’t the transformation be a form of satire and therefore permitted under “fair use?” Thanks!

  32. […] Here is Attorney Sarah Hawkins’ definition: […]

  33. Chatterbox Promotions May 17, 2016 at 9:48 am - Reply

    […] EVERYTHING is copyrighted until you review the license attached to that piece of work. Sarah Hawkins explains “Copyright attaches at the time of creation and there is no requirement to use the […]

  34. Faintly Macabre December 14, 2016 at 9:07 pm - Reply

    Hi Sarah! Here’s a question for you – if I work for, say, a soda company, and I run a sweepstakes where you win a specific product, like an iPhone, can I google ‘iPhone’ and pull down an image from the internet and use it in the print advertisements for my sweepstakes without asking Apple for permission? Would I need to ask Apple for permission to use their logo as well as the image of their product, or is all of that fair use?

    • Sara Hawkins December 14, 2016 at 10:27 pm - Reply

      First, using another company’s copyrighted property for your commercial purposes is very rarely covered by copyright Fair Use. Perhaps there could be a trademark Fair Use, but you’d have to evaluate the specific use with regarding to trademark law since trademark fair use and copyright fair use are very different.

      Second, taking any image from a google search can be problematic because the image may be subject to copyright and unauthorized use could be an infringing use.

      Third, Apple has very specific rules with regarding to how third parties use their intellectual property so even saying that the prize is an iPad would need to be compliant with Apple’s rules. You can try asking Apple for permission if your use is not an authorized use under their publicly disseminated guidelines, but it’s highly unlikely you’d even get a response.

      Fourth, when one company uses another company’s intellectual property there are a number of legal issues that can come up which should be addressed to limit liability.

      Best of luck!

  35. Nate January 27, 2017 at 3:05 pm - Reply

    Hi Sara, great info here. My question is about costumes and cutouts of movie characters. Are there ramifications if I post pictures or videos of employees in costumes or dancing with purchased life sized cutouts of characters? They would be posted to our social media accounts with no sales pitch directly linked to them.

    • Sara Hawkins February 11, 2017 at 4:31 pm - Reply

      The key word in your question is the word ’employees’. Any time one business is using the intellectual property of another business it should be evaluated to determine what legal concerns may arise. It wouldn’t necessarily matter if a sales pitch was connected with the posted image, because there are a host of other questions regarding why an employee for Company A is wearing a costume of a character owned by Company B. For example, if it’s a Halloween party and employees are dressed up there may be fewer legal questions than if it appears the image of the costumed-employee is attempting to trade on the goodwill or brand of Company B. This is more of a trademark issue than copyright.

  36. Edgar February 6, 2017 at 5:25 pm - Reply

    Thanks for the information. I have a specific situation that is not exactly what you’re addressing but it’s so close, I figured I would ask. I am part of a non-profit and we put on walks for charity. We mail out a printed newsletter to our membership every month and like to put pictures of the walks in there. A photographer is known to take pictures and post them online sometimes for free download and sometimes at a cost. We’ve used some of them in our newsletter (either free or paid) and when we did we have given the photographer credit. As we are a non-profit, and the newsletter is technically “news” and reporting are we covered under fair use?

    • Sara Hawkins February 7, 2017 at 9:46 am - Reply

      First, a commercial newsletter, even for a non-profit, is not ‘technically’ news. The type of news covered by fair use is journalism. A newsletter produced to provide information about the non-profit likely will not qualify as the type of news covered by fair use. The information may be newsworthy to its readers but it’s not likely the same classification of ‘news’ as contemplated by fair use.

      Second, photos of people may be usable from a copyright (i.e., license, ownership) and privacy (i.e., taken in public) perspective but that doesn’t mean the images of a person can be used for commercial use without their permission. When signing up for the walk, is the participant giving permission for their likeness to be used for commercial/marketing purposes?

      There are a number of considerations that must be examined when using photos of people.

      • Edgar February 7, 2017 at 11:21 am - Reply

        The participant is signing a waiver giving their permission… it’s the photographer that hasn’t signed anything and we are not sure if we might get in trouble for using their photos.

        • Sara Hawkins February 9, 2017 at 10:04 pm - Reply

          Any time an individual’s image is used for commercial/marketing purposes it’s wise to get a model release since right of publicity laws provide individuals control of how their name, voice, image, likeness are used for commercial purposes.

    • Ron February 7, 2017 at 9:52 am - Reply

      I ain’t the final authority here, but it seems obvious you could only use the “fair use” defense if the story were about the photography, not the charity walk. If you could use the work-product of a photo-journalist in any “news” story without permission or compensation, every photo-journalist (along with Getty Images and other stock photo sites) would be out of business tomorrow. I don’t believe your “non-profit” status would have any effect on the use of a copyright image.

  37. June February 8, 2017 at 5:31 pm - Reply

    Hi Sara,
    I’m so glad I found your website. You clarify things well. However, I have a question that I can’t seem to find an answer for despite all the searching I’ve done.

    I am a graphic designer and a photographer. I’m a little obsessed with taking photographs of old television shows (mostly from the 60s) playing on my ancient television set. The resulting images are grainy and look like the analog tv images that they are. I want to manipulate these images and print them on items for sale. Is this Fair Use? Is there a percentage standard of how much the image is changed in order to be Fair Use? What if the actor is recognizable in the image? Is that an infringement of Publicity Rights?

    Your help is much appreciated.

    • Sara Hawkins February 11, 2017 at 4:54 pm - Reply

      Hi June, if you’re manipulating a work then you’re looking at a segment of copyright law that applies to derivative works. US Copyright laws grant a copyright-holder exclusive rights to create derivative works. But often there are fair use right or, even, rights because the new work is transformative. These questions are complex and I would suggest that if you wish to create a commercial venture you seek legal advice regarding the copyright concerns. Rights of Publicity are governed by state law, with 23 states providing for post-mortem rights. For those who are still alive, they would also have rights of publicity.

      • June February 13, 2017 at 12:26 am - Reply

        Thanks so much, Sara. This info is helpful.

        If I decide to move forward with the project, I’ll contact you directly for your professional services.

  38. Lyddmila Shvets March 9, 2017 at 12:55 pm - Reply

    Hi,
    I am working for a private school and am creating a bulletin board. I would like to add some pictures to illustrate what it states. I found some great pictures on Google images that I want to use. Is it safe to use them? Is there a way that I can purchase the images from creator?

    • Sara Hawkins March 13, 2017 at 12:27 pm - Reply

      Thanks for your great question! You didn’t mention if your bulletin board was in your classroom or online, but that may make a difference. The Fair Use exception for education is something you should explore from a copyright perspective. Of course, providing attribution would be important.

      If you’re not sure if Fair Use would apply, you may want to reach out to the creator of the image. I know a number of designers who create educational visuals and they either make them available for sale on their website at a price that’s good for teachers or, if they’re not specifically focused on selling to teachers, would gladly provide permission.

      Wishing you all the best!

      • steve May 31, 2017 at 10:14 am - Reply

        Question: If “fair use” includes “news reporting,” does that mean I must be reporting on the image itself – or can I use the image to illustrate a news story on some other topic? For example, if a photojournalist snaps a picture of, say, Bernie Sanders for the NYT – and I grab that image off the Internet and use it for my own story on Bernie, would that constitute “fair use?” It is news reporting… But I don’t think I can use the image. 2nd Question: If I heavily modify an image, turning it into a cartoon or a caricature, is that derivative work “fair use?” One could detect the source image in the transformed work, but wouldn’t the transformation be a form of satire and therefore permitted under “fair use?” … or do I comment on the image itself?

        • Sara Hawkins June 3, 2017 at 10:44 am - Reply

          First Question – it all depends. Fair use depends on the specific circumstances so it’s impossible to say with certainty if any particular use is covered unless all the facts can be analyzed.

          Second Question – copyright holders have the exclusive right to create derivative works. The question of ‘transformative’ is not as objective as many would believe it to be and courts are not consistent in the determination of what is and is not transformative.

  39. Regarding intellectual property: “Respect the shooter” March 13, 2017 at 9:05 pm - Reply

    […] Honestly, intellectual property is a confusing topic and the Internet makes it even more confusing because it’s easy to think if someone shares their work on the Internet, it’s free for anyone to share. That’s not actually the case, though. I found two articles that help explain copyright law and simplify a complex concept. This link will take you to the first article, and this link will take you to the second article. […]

  40. Where to Find Blog Pictures and How to Cover Yourself Legally - Till Carlos March 22, 2017 at 5:06 am - Reply

    […] Social Media lawyer Sarah Hawkins says […]

  41. Tom Jones June 26, 2017 at 12:43 pm - Reply

    GREAT information!! Thank you for this writing!
    I am a huge supporter of the arts, as I am a graphic artist myself. I buy stock photos whenever I find the ones I need, and support my industry however I can.
    I also work in marketing, specifically auto service advertising. I found a great image of a particular make and model (Jaguar in a nice background, with a smiling model) I want to use for some mailers for a company that works ONLY on this vehicle make, however this one image I have found does not reside on any of the stock photo houses I use for normally making such purchases. Under the fair use act, am I permitted to use the image as is? The mailer will contain important recall and factory warranty information pertaining to this vehicle. Does that make it “…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…”?

    • Sara Hawkins July 3, 2017 at 11:35 am - Reply

      There are three main issues with using a photo like this: (1) there is a model and without a model release using a person’s likeness without permission could violate their exclusive right to publicity; (2) the copyright holder has the exclusive right to use and for a commercial business to use their image without permission could crate liability. If it is a registered image and they’re willing to sue, would you have the financial wherewithal to try and prove your use meets Fair Use standards? In situations like this, proving the Fair Use criteria is not always as easy as it sounds; (3) trademark rights for use of the vehicle, while small, should be considered in the whole of how it’s being used.

      Any time an image is used by a commercial business and the provenance of the work is not known and no license or permission can be obtained, use should always be undertaken only after considering the potential consequences of using a copyrighted image without permission.

  42. srinivas maddimsetti June 28, 2017 at 4:44 am - Reply

    Can I use Google images with usage rights “not filtered by licence” for my Youtube Thumbnails on a monetized video? Are these google images copyrighted? Am I allowed to use them? I see a lot of youtubers using google images that is “not filtered by licence” for their youtube thumbnails on a monetized video, some of them even modify the images; so I’m a bit confused if I’m allowed to use them or not for my youtube thumbnails(my videos are monetized). I don’t want to get a copyright strike or any kind of strike on my youtube account and I’m really careful on the content/videos that I upload and publish on youtube.

    • Sara Hawkins July 3, 2017 at 11:49 am - Reply

      The phrase ‘not filtered by license’ just means that the search is not returning results that are in any particular category. Unless otherwise known, the assumption must be that all images returned in a Google search will be subject to copyright. I’m not sure how YT does their ContentID match for images, but if YT takes issue with use of a copyrighted image it will be up to you to provide proof of authorized use.

      Some people argue with me about this saying that Google won the right to use thumbnail images (Perfect 10) so that means everyone can. That’s not the decision of the case and while use of a thumbnail may be considered Fair Use (as it was in Perfect 10) that was not a universal determination for all uses of thumbnail images.

  43. Arie Ortiz July 24, 2017 at 12:26 pm - Reply

    Hi, I have a website where I review video games and I was wondering how I should go about including images of games on my site. Currently now, I would take a pic with my phone of the game case but I was also planning about writing about a game that is not out at the moment and would like to use an image of it but I do not want to get a copyright strike. I tried looking for royalty free images for the game but cannot seem to find any for that game. I’m not sure what image to use, should I maybe try pointing my phone at the screen displaying the image I want then take a pic of it and use that?

    • Sara Hawkins July 27, 2017 at 4:46 pm - Reply

      Hello Arie,

      Often video game makers provide press images that news sites, game reviewers, etc. can use when discussing games that have not been formally released. You may want to check on the game website for press images or reach out to their PR department and find out how to get on their list.

  44. Scott July 27, 2017 at 3:37 pm - Reply

    Very Informative article.
    Am I understanding fair use correctly, does a news station, under what I believe is valid fair use, have a right to take several photos from my online site and crop off the visible copyright symbol and business name without providing photo credit ?

    Thank you.

    • Sara Hawkins July 27, 2017 at 6:11 pm - Reply

      Fair use is an exception to copyright infringement. Fair use does not permit the violation of other protections under the US Copyright Act. There are some legal issues with regard to whether watermarks are considered “copyright management information” under the Act. Under the Act, removal of copyright management information is a violation. And often a very serious violation. Ethically, of course, removing attribution creates plagiarism issues.

  45. John Shewey July 30, 2017 at 5:18 pm - Reply

    Hi Sara,
    I’ve found this and other pieces by you to be highly informative, but I do have one question (as a magazine editor). Here’s the scenario: A book published 50 years ago is out of print and the publishing company no longer exists and appears to have simply gone out of business rather than being acquired. The author is deceased. Can a for-profit magazine publishing a biography of that author reproduce images from within the author’s old out-of-print book without permission from anyone (as it seems there’s nobody left to give permission)?
    Thank you,
    john s

    • Sara Hawkins August 1, 2017 at 4:56 pm - Reply

      John,

      A book published 50 years ago would have been published in 1967. For works published 1923 through 1977, if it was published without a copyright notice it is now in the Public Domain for failure to comply with copyright formalities. If it was published with a copyright notice then the term of the copyright is 95 years from date of publication. If the author held the copyright at the time of death, the copyright would have passed to his/her heirs. If the publishing company held the copyright that is much more complicated.

      Publishing without permission a copyrighted work (or a portion thereof) for which there is no exception (i.e. Fair Use) is infringement. That’s the black letter law. Would there be an exception for the magazine? That would need to be determined by you and your attorney. Is the work really in the public domain? That should likely be the first answer sought because if it is in the public domain nothing else really matters (well, attribution does but that’s not a copyright issue).

  46. Mike Smith August 10, 2017 at 8:02 pm - Reply

    Glad I found this article and follow on Q&A. I’m developing a mobile app that includes images of several hundred famous people that gives users the ability to provide commentary & critique. Your article discusses copyright infringement of the original image creator (photographer) but could Fair Use also apply to the subjects (famous persons) themselves?

    • Sara Hawkins August 19, 2017 at 1:40 pm - Reply

      There are really two questions here – copyright and right of publicity. Rarely would a famous person own the copyright of an image of them unless it was a selfie, a work for hire, or the copyright was transferred. That would mean the subject of the photo likely doesn’t have any copyright rights in the image. However, all individuals have the right to control how their image/likeness is used (right of publicity). The right of publicity is a state right, with some states being more protective than others. Even if there would be a Fair Use claim regarding use of the image, there is no Fair Use defense to the right of publicity.

  47. Larry Freda August 22, 2017 at 12:38 pm - Reply

    Maybe I missed it but I don’t see the desktop wallpapers addressed.
    If I download pictures for my personal use as back ground wallpaper,
    will this be covered under fair use. To put it bluntly, is it illegal.
    I’m not posting them to a web-site or my facebook page.
    I’m not using them in any commercial venture.
    This is only being used for my pleasure and enjoyment.

    • Sara Hawkins August 30, 2017 at 9:48 am - Reply

      This would be a great law school exam question because there are two paths – (1) the legal issues and (2) the practical issues. What it comes down to, though, is where you’re getting the wallpaper. If your use is completely personal, there is a good argument that it’s not a copyright violation. That is, however, presuming you have legally obtained it. This is the base argument that we saw with Napster and that we continue to see in file sharing matters. If an individually legally obtains a copyrighted work and uses it solely for personal use, there would be a strong argument that the use is not infringing. There is, of course, the practical question of if it is truly for personal use how would the copyright holder find out? However, if the work is obtained without authorization, there may still be an argument that the use is non-infringing even though it was not obtained with permission or authorization.

      As you can see, what seems like a very simple question really isn’t.

  48. Katarina October 11, 2017 at 3:28 am - Reply

    Mrs Hawkins,

    this is a very informative blog. If I understand correctly – I have a fashion blog, and I write about products that are currently in fashion, like – nail polish, lipstick, clothes, you get the picture, so am I allowed to paste a picture of that product on my blog and link to the store?
    I mean, I get what you say about asking the store owner, however I doubt that the H&M, New Look, Zara, etc. will even answer a small blogger like me.

    • Sara Hawkins October 11, 2017 at 12:51 pm - Reply

      Often designers and retailers have press portals that discuss what can be used by bloggers/journalists. Many designers will provide access to press images or explain how images are to be used and attributed. No copyright exists for useful articles, but the photos that you’d be using are likely subject to copyright. Some brands are employing bots to find unauthorized uses so definitely check out the PR sections and see if there is information about using their images. You may also want to get on the PR lists because they will often send out info and images for promotion purposes. Best of luck!

  49. Kath October 13, 2017 at 10:32 am - Reply

    Thanks Ms. Hawkins for an awesome and easy-to-understand post about copyright! This is the best write-up I have seen about it. I feel informed and empowered! Kudos for the great work you are doing in making legal information accessible to all.

  50. TW October 14, 2017 at 2:09 am - Reply

    Hi Sara,
    It speaks volumes to the quality and applicability of your topic and presentation of it that you have so many questions/comments from readers, and you have provided valuable responses. I am a high school literature teacher and one unit of study is students writing blog posts and within that unit we spend time on image ownership concepts, image selection to support writing, and sites that make images available for reuse, like visualhunt, flickr, et cetera. It’s always fun and revealing to watch students’ minds open up and say, “But I thought…” when we look at copyright v. educational use under fair use. In sum, I want to say thanks, and I just used your link to help a student understand a finer point of this topic.

  51. Rafael November 29, 2017 at 8:30 pm - Reply

    Hi dear,
    I am not really sure if in my case it’s going to be legal or not. I would like to write articles: 50 coolest vintage bike ever, 50 most beautiful Dutch bikes.
    There is a lot of pictures on the Internet I would like to use. I see people making Youtube videos like this. They have channels and they make videos only like this: 10 most beautiful X, 30 most interesting Y. Is that legal?

    Thank you for assist.

    • Sara Hawkins December 21, 2017 at 2:58 pm - Reply

      You likely need to examine Fair Use and how it applies to your specific use and determine if you’d be covered or if you believe there is a solid Fair Use claim that can be defended if challenged. You may want to speak with an attorney knowledgeable in this area to ensure you’re comfortable with the potential risks.

  52. Lady Gem November 30, 2017 at 9:49 am - Reply

    Good article. Thanks!

    I have been looking for information on converting a cartoon-like image from a movie like NIGHTMARE BEFORE CHRISTMAS into a cross stitch pattern for my own personal use. It will not be sold…it will be given as a gift.

    Would this legitimately fall under fair use?

    An extensive search of the internet turned up a lot of for-pay unlicensed charts, which I won’t use. Nothing available of a licensed nature.

    Thanks.

    • Sara Hawkins December 22, 2017 at 6:34 pm - Reply

      As discussed in a prior question, there is no Lawful Personal Use doctrine when it comes to copyright. Also, just because what you need doesn’t yet exist doesn’t make something fair use if you were to make it yourself. You have to weigh the risk of copyright infringement, getting caught, and being pursued with legal action. I can’t tell you what you can or can not do. The personal use of a copyrighted work does not raise a legitimate fair use claim just because there is no option to lawfully purchase what you need.

      But just as one can choose to ignore the posted speed limit, one can choose to undertake a personal use of a copyrighted work. It’s a matter of weighing the pros/cons to determine if it’s a risk you’re willing to take.

  53. Kris December 11, 2017 at 5:56 pm - Reply

    Hi, I’m currently being harassed by another blogger who copied one of my photographs from my site and posted it on his. I asked him to take it down and he refused, claiming fair use. I filed DMCA complaints with Google and his host and he temporarily removed it, but filed counter claims and just informed me that he is replacing it today. The entire image was copied without permission and he links to the post it came from with an excerpt of my text and a few comments on the post (not my photo). It’s not educational or news reporting, and he has ads on the site. Is his claim of fair use justified? He’s being very belligerent and threatening a massive legal battle, so I’m afraid to even engage one of the online copyright firms that operates in Europe.

    • Sara Hawkins December 22, 2017 at 6:03 pm - Reply

      Unfortunately, you can’t stop people from choosing how they will respond. It can be difficult, especially when you are being attacked online.

      The DMCA process does allow for the filing of a Counter Notice claiming the use if covered by the Fair Use doctrine. Once the Counter Notice is received, the online provider will likely replace the disputed work because it’s not up to the online provider to mediate a dispute. Keep in mind, though, that both a DMCA Takedown and Counter Notice are filed under penalty of perjury for if it is patently false there could be significant consequences.

      The determination of fair use is not exact and one may claim the use falls under Fair Use while the copyright holder may disagree. This type of dispute may not be easily resolved without other intervention if the parties are not able to negotiate a mutually agreeable solution.

      As for the claim of threatening a ‘massive legal battle’ you have to think about what claim does he have to sue you. Perhaps speaking with an attorney might help you to understand what course of action is available to you.

  54. Sazzad December 28, 2017 at 11:47 am - Reply

    Brilliant post here. Lots of thanks .

  55. Javier December 31, 2017 at 4:28 pm - Reply

    I have a political twitter feed in which I often use short video clips of our Congressman’s public statements. These statements have appeared on broadcast media and have been later posted on his own twitter feed. I have reposted these clips on my own feed with almost no editing except splicing to the relevant segment which makes the point I would like to address. Could he claim some violation of copyright law?

    • Sara Hawkins January 29, 2018 at 8:00 am - Reply

      Copyright in the video lies with the person who took the video, not the person in the video. If there were to be a copyright claim, that claim would come from the videographer, the company they work for if it’s a work for hire, or the person/organization that purchased the copyright rights.

      The question of Fair Use is one that you and/or your legal counsel would need to determine because if copyright infringement is raise you’d need to know if you can legally raise Fair Use as a defense.

  56. […] Copyright Fair Use and Online Images […]

  57. Mike Dion February 5, 2018 at 11:30 am - Reply

    I enhance old photos with humorous (I hope) word balloons and post them to my blog with the disclaimer “I do not own the rights to these images.” 99% of them are harvested from Pinterest, and I do credit photographers whenever possible. Is that sufficient coverage to shield me from the ravages of legal action?

    • Sara Hawkins February 27, 2018 at 2:30 pm - Reply

      Providing attribution has nothing to do with copyright law, that’s a plagiarism issue. In the US plagiarism is not illegal; unethical, sure, but not illegal. If your work falls into an exception or is deemed (by a court/judge) to be non-infringing due to a valid legal theory then you’d be safe. However, those determinations are not made until the copyright holder makes a claim. And those claims may or may not be upheld if there were to be a DMCA takedown issued by the copyright holder or their exclusive agent.

  58. Rob February 5, 2018 at 2:45 pm - Reply

    Hi, I just found your blog and got some good info. In any event wanted to get your opinion of something. I have a small online advertising firm where I build websites, youtube videos seo etc. I also write blog posts for different industries. I wrote a post about insurance agent motivation. In the post I used a few of my own images and then sort of ran out of images for the article. I did a google image search for insurance. I then did a filter for for commercial rights to reuse, resize, or alter the image. I found a perfect one. When I clicked on it I found that there was some .org site sponsoring the image. At the very top it said the same thing in bold letters saying fair to Re-use share even commercially. I used the image. Fast forward to beginning of the year and I get a email stating possible copy right infringement. I see the email from an attorney office. So now I am dumbfounded as they have a screenshot of the commercial rights image I used on my blog. So I called the person in the email and she happens to be a paralegal not an attorney. She starts spitting out codes violations all types of stuff. I said listen I had express consent to use this image from google images under the fair use act. She said doesn’t hold any water and that I am guilty. I told her that you need to go after the .org site that is sponsoring the image, they are the ones that are posting saying you could use it. Turns out that is her client that is suing me for copyright infringement. Apparently on the site hidden throughout there is click here ads saying that when you go to a third page you must give attribution. Well I would have done that if it state it clearly, but to go through 3 pages is ridiculous. Anyway the image is for sale for $249 dollars. I told the paralegal I would buy an image license if that is what they were looking for. She said no that their client has been too badly damaged. Now they want $2,200 in damages. I so far have consulted with two online attorneys who both said this is ridiculous and border line ambulance chasing since I have received nothing in the mail. It is simply emails and one phone call. She now emailed me today and said that since I won’t resolve this matter amicably they are going to litigate and ask for full damages and lawyer fees. I know you can’t give advice, however I really don’t know what to do. I don’t know if I should fight it, show up defend myself, or pay a ridiculous fee? Also should I not request something in writing before proceeding with anything? Thanks

    • Sara Hawkins April 25, 2018 at 11:53 am - Reply

      These situations are always difficult because anyone can put anything up on a website, which makes taking photos found online problematic. Unless you have permission from the copyright holder, any statement on a website authorizing use could be from anyone. Sorry you’re dealing with this, but understand that the site where you found the photo may not have had the right to authorize reuse and it would be up to you to demonstrate that the authorization you received from the website was from the copyright holder or their authorized agent.

  59. Dr J February 9, 2018 at 3:27 pm - Reply

    Hi. Great post. Very Clear. Can you speak to personal use of a work-product in an online portfolio? My (non-profit) organization posts photos, videos and audio of work product online. A former exec at the organization (who is featured in some of the videos) has also posted photos, audio and videos online in a personal portfolio. The videos used were paid for by the organization, and therefore the organization still holds the copyright to the videos and photos, even though the former exec has left the organization.

    Is a personal portfolio of the former exec covered under ‘Fair Use’, or does the the organization have a claim for infringement?

    • Sara Hawkins March 2, 2018 at 9:13 pm - Reply

      Unfortunately, Fair Use is much to complex to determine based on these minimal facts. Fair Use is a defense that the former executive would have to raise if, indeed, there is infringement. Just because the organization paid for the photos doesn’t mean they own them. There would have had to be a ‘work for hire’ agreement with the photographer or a full assignment of rights. If the organization does not have copyright ownership, but instead only a license, you’d need to determine if the executive obtained rights from the photographer. If not, you’d have to look at what recourse is available if the organization only has a license.

      Many people incorrectly assume that if they are in the photo they have rights to the photo. Fair Use does not consider this and, raising a fair use defense because you’re the subject of the photo or are in the photo is not going to work very well.

      More information is definitely needed for the organization to make a better determination.

  60. […] Lawyer Sarah F. Hawkins weighs in: Copyright Fair Use and Online Images […]

  61. JC P. March 29, 2018 at 9:37 am - Reply

    Good Afternoon,

    Very insightful article! In my situation I’m a manufacturer of building products (windows & doors). With that said we sell to installers who put our products into commercial and high end residential homes. If a picture is taken (from the exterior of the building) of my product by another entity (by the installer or 3rd party) do I have a right to utilize that image? If a professional photographer was hired I’d assume they have the rights to the imagery correct? At that point would I need to reach out to them for permission if they were contractedc by that same installer that installed my windows? Looking forward to your response.

    • Sara Hawkins April 25, 2018 at 10:59 am - Reply

      Simply being the manufacturer or owner of the product pictured in a photograph does not give you the right to use of the photograph. It may allow you to prevent their use of photograph for certain purposes if it violates your rights as the manufacturer or owner, but your use of their photograph could be in violation of their copyright rights.

  62. brooklyn April 11, 2018 at 5:14 am - Reply

    I know this is an old post, but I need to ask.
    If I want to make an app for which I need to use images (mostly screenshots) of T.V. shows and cartoons, is it legal to use images that I get online?

    • Sara Hawkins April 25, 2018 at 10:47 am - Reply

      Taking photos found online could create potential liability if those works are covered by copyright and your use infringes that copyright and is not otherwise covered by an exception (such as Fair use or parody). Incorporating an image found online for a commercial app should be discussed with your legal counsel.

  63. fashion store April 27, 2018 at 3:01 pm - Reply

    I love reading through a post that can make people think.
    Also, many thanks for allowing me to comment!

  64. Carrie May 1, 2018 at 2:36 pm - Reply

    Hi Sara,

    I recently launched a fashion blog and have been making collages containing images of products that I like from online stores (like Nordstrom.com for example) and recommend that my readers purchase. I take the image from the Nordstrom site, insert it into my collage and link it back to the exact Nordstrom.com URL that the image came from. Is something like this protected by fair use since it is a review and it’s from an online retail site?

    • sara August 12, 2018 at 2:25 pm - Reply

      It may be Fair Use and it may not. If you have a good faith believe your use meets the criteria for Fair Use you could raise it as a defense if challenged. However, fair use is determined by a court and if the parties disagree it’s up to the copyright holder to pursue legal action. At that time you’d be able to defend your use. If you are concerned, you would want to check with an attorney who could give you a legal opinion.

  65. Rolly corre September 4, 2018 at 1:52 am - Reply

    I ask my friend to take a photo of me that i will put on my web site in exchange of a small fee after he edited it to look professional. He send me some unedited raw picture after our photo shoot that i use on my web site. We had argument about him wanting me to pay even if he hasn’t show me the finished, edited photo. After the argument i removed the photo that he took on my web site And hire another photographer. Now he still asking me to pay him. Do i need to pay him even though i remove the picture that i put on my site and dont need the rest of the picture that he have?

    • sara November 14, 2018 at 8:26 am - Reply

      Payment to a photographer is often for their services, not necessarily for any license or right to use the image for a particular purpose. Without a mutual understanding of right rights you may be paying for or that the photographer was granting, you’re left with a basic contract dispute not necessarily a copyright issue. Many people misunderstand what rights they get when they hire a photographer or ask a friend to take their photo.

  66. Beaumont September 16, 2018 at 11:43 pm - Reply

    Hi Sara … Here is something I hope you can address. If a website purposefully manipulates images of it’s members programmatically by injecting code into the header of the JPEG files for instance it renders the image unusable. The image is then damaged because the header is larger making the file larger than it’s original size. Thus the file’s format becomes invalid and cannot be used by someone who tries to download it. So if a lady sends a picture to her male friend and the male friend tries to download such a file, the imaged is then rendered damaged. Windows image viewer will actually indicate that the file is corrupt, damaged and larger than the original format. It is has been corrupted on purpose.

    Is the website committing a copyright infringement by such actions their clients images by destroying such a document. These images are posted by women clients as they build their dating profile. The images I believe belong to the women not the dating company and any manipulation of these images (even as they are being downloaded by perspective date partners) is a crime. A jpeg, png, gif, bmp etc is considered a document. They could contain data and etc. Can a date site be sued for doing such a thing? Just curious. I realize that files can be manipulated using a third party application such as Photoship. But manipulating the images grammatically and destroying them is also a modification of the original work. I also realize that many bloggers are being sued for misuse of images etc. I am talking about the willful destruction of images by a dating site company. Any thoughts on this would be greatly appreciated.

    • sara November 14, 2018 at 8:10 am - Reply

      Interesting question, but one without an exact answer at this time. This is something that legal experts have not yet weighed in on, the manipulation of code that creates a modification of a copyrighted work. There are copyright grants in software (source) code, but it’s handled in a different manner than visual/photographic works. However, the use of non-source code, perhaps more of an algorithm, to manipulate the usability of a photograph is not something I’ve come across in my readings of copyright law. It does demonstrate that use of technology to affect copyright is advancing at a pace much faster than what copyright law covers and protects. Until we have this question before a court, it’s purely speculation as to how the law would treat this issue.

  67. Beaumont September 16, 2018 at 11:48 pm - Reply

    I meant to say … manipulating the images programmatically and destroying them is also a modification of the original work or document belonging to a site user.

  68. Maggie October 26, 2018 at 9:01 am - Reply

    Hi Sara,
    Thanks so much for this great article! I have a question that I’ve been having a hard time finding the answer to. I’m a photographer and have a client who makes a product aimed at interior designers. They’ve requested that I take photos of their product being used, and in those photos I’ve used parts of fabric swatches as props. Those fabric swatches display a pattern which is, of course, copyrighted by the company that created them. The photos are for editorial purposes and will be published in trade magazines and on trade websites. Am I infringing on the rights of the fabric company? Should I obtain a release for these images? Thank you!

    • sara November 14, 2018 at 9:54 am - Reply

      Very interesting question, Maggie. This is likely less of a copyright issue than of how does the First Sale doctrine apply. Fabric design copyright protects against reproduction of the design “in a tangible form” not normally for photographing such fabric. This is actually a very complicated aspect of copyright law but together with the First Sale doctrine, purchasers of the fabric are not seen a infringing the copyright except in very few and unique circumstances.

  69. Ashley October 30, 2018 at 1:59 pm - Reply

    Hi Sara,
    What about street art? Like outdoor murals painted on walls? If I take a photograph of the mural, and then use my photograph online, am I infringing the original arist’s copyright? Even if I include who the artist is? If I do email the artist to ask if I can use it and they email back “yes” is that enough?
    Thanks!

    • sara November 14, 2018 at 10:02 am - Reply

      If the outdoor mural is subject to copyright, taking a photo of it in and of itself is not likely to rise to the level of copyright infringement. However, what is done with that photo may or may not be an infringing use due to the derivative rights that are exclusive to a copyright holder.

      An email exchange can form the basis of a contract. However, there could be some dispute as to what rights were authorized between parties in an email.

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