Earlier this year we talked about all the images we can use on our blogs without getting into trouble. But the truth remains, if you read fashion blogs, you have probably seen a copyrighted image being used, and if you have any idea about the likely hood that Vogue would grant one of us permission, well it's easy to guess that the images are probably lifted off their site. The use of copyrighted images is so commonplace, when I was at London Fashion week a few designers told me to use images of their fall collections on Style.com (not to name any names outright, but I'll give you a hint, I'm using the pic via style.com above)… even though the disclaimer on the site says:
‘The material on this site may not be reproduced, distributed, transmitted, cached or otherwise used, except with the prior written permission of CondéNet, Inc.'
Talk about mixed messages! Anyway… I've yet to hear of a blogger actually being busted for using images off of major sites without written consent. Why aren't the big sites sending out cease and desist orders? Well probably because of a tiny loophole many bloggers have (at times unwittingly) used.
In the US (it varies in different countries) fair use is the exemption of copyright law so that people can make commentary, parody, satire, news, etc… without getting permission from the author. Bloggers often make commentaries on images, saying ‘this is what I think about this trend…' putting them in the fair use category. Fair use is a tricky grey area, and is determined on a case by case basis, so Ashe Mischief's friend and law student has taken the time to explain to us what exactly is ‘fair use' and how it affects our blogs…
Text by ‘Lady Muscadet'
Copyright owners have the exclusive right to reproduce their works. This means that only the person or company who owns a copyrighted image can user that image or give permission for someone else to use that image. If you use a work (be it photographic, artistic, or even copy/pasting text) without the permission of the copyright holder, you may be liable for copyright infringement.
Legal principles that prevent someone who has made unauthorized use of a copyrighted work from being liable for infringement are called “infringement defenses.” While there are several defenses (parody, library exception, educational purposes, etc.) the main defense that can shield many bloggers from liability when they use copyrighted images is the fair use defense. Fair use is an escape hatch that gives courts deciding infringement cases flexibility, so it it necessarily somewhat vague and is applied on a case-by-case basis. Nonetheless, there are some basic fair use rules to keep in mind.
Generally, a use will be excused as a fair use if it promotes the purpose of copyright law (encouraging production/dissemination of works of authorship) and will not undercut authors' economic incentive to create and disseminate works by seriously undermining their marketing opportunities.
What does this mean in English?
First and foremost, courts have found that to be “fair” a use has to be transformative and not just reproductive. This means that someone cannot simply start up a blog and upload all the images from the Neiman Marcus website. This would be a merely reproductive use that was not in any way transformative. If, however, you upload select photos from the Neiman Marcus website in order to comment on or criticize the store, products, or even the photograph itself, you are not longer just reproducing the work, you are transforming it. If you are using an image for the following purposes, it is most likely a transformative fair use and not copyright infringement: criticism, comment, news reporting; teaching; scholarship or research; parody.
In cases that fall into a “gray area,” courts have used a four factor test to determine if a use is fair use and it can be useful to know these factors in order to get a “feel” for fair use. These are not the only factors that courts have used but they are the four main ones:
- the purpose and character of the use (are you using the photo to make money or for non-profit, educational purposes? Does your use transform the work or just reproduce it?);
- Nature of the copyrighted work (less relevant to blogging; is the work published or unpublished? The author of a piece has the right to control the first public appearance of his/her expression; is the work fact or fiction? More necessary to quote works of fact [like newspaper articles] than works of fiction);
- Amount and substantiality of the portion of the copyrighted work used (don't upload ALL the photos on the Neiman Marcus site, only what is necessary for you to make your point about a trend, etc.);
- Effect of the use upon the potential market for or value of the copyrighted work (this is very important: if your use of the work could in any way take money away from the author of the work, it is most likely not fair use. Criticism is exempt from this. If you criticize a work and this causes people not to buy the work, that is not a problem.) (For the four factors, see Folsom v. Marsh and section 107 of the Copyright Act).
Summary and Practical Implications
- If you're using a copyrighted photo in your blog in order to criticize it or comment on it you're most likely safe under fair use (“I love/hate this;” “this is part of a bigger trend and this is what I think of it”)
- Keep in mind that you may be in a precarious position if your use of the photo will make any money for you.
- If a copyright owner contacts you accusing you of copyright infringement and asks you to remove the image, you should do so immediately. As I mentioned above, fair use can be a fluid and vague area of law and, unless you're sure it's a battle you want to fight, better safe than sorry.
Disclaimer: The information provided in this post is for general informational purposes only and is not intended to provide legal advice to any individual or entity. Neither the author nor publisher of this post make any claims, promises, or guarantees about the accuracy, completeness, or adequacy of the contents of this post, and expressly disclaim liability for errors and omissions in the contents of this post. Legal information is not the same as legal advice, which is the application of law to an individual's specific circumstances. Please consult a lawyer if you want professional assurance that this information, and your interpretation of it, is accurate and appropriate to your particular situation.