Fair Use Explained: More on Copyrighted Images on Blogs
By: Jennine Jacob

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pantsEarlier 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.

Fair Use.

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:

  1. 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?);
  2. 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);
  3. 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.);
  4. 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.

Comments

  1. Thank you so much for sharing this, darling! In the arts across the boards, it seems that information on copyright and fair use often seem up to personal interpretation, especially on the Etsy forums D:

    I’m glad I was able to seduce my girl friend in to helping us bloggers out, so we have a better sense of how to protect us and what we can/can’t away with!

  2. ms. shoo says:

    I honestly only think the time bloggers get into trouble is when they don’t cite their source. This is why when I do interviews and the images have been released to me with specific instructions on how to cite, I add an extra line that says “for use on SheBreathes”.

    I tend to cite the source of images in every single post, including the ones I’ve taken it just saves me the trouble. I have never been asked (thus far) to take any fotos down. And my copyright notice is suppose to refer to my text and the photos I own {which per my knowledge I need to actually correct and be specific hehe}. I do ask for a link back if someone is using the images I’ve collaged, resized, etc together. I dunno seems like “blogger etiquette”, but I also know that those aren’t my fotos I just worked on them. If I know who the photographer is for the designer I try to cite them as well, and I rarely use the word “courtesy” to me that means I’ve been given permission to use, when I haven’t {unless again in interviews, or exclusives etc}.

    One of my closest friends is an intellectual properties attorney and she tries her best to keep me in the “know”. I’m always mindful of these things, and it seems to me that most in the fashion world don’t mind, as long as you’re citing them etc.

  3. Birdie says:

    This is a great article!! I’ve always wondered about fair use of pictures and to be safe, I (almost – unless I’ve spaced it, which happens…) always credit the original site or at least link to the original site via the photo.

  4. Thanks for the info. I always worry when I post pics from other websites! I try to put a link back to the website where I found the photo, so at least they’ll get proper credit and increased promotion/web traffic.

  5. Freya says:

    I have a question, suppose a person takes a photo from a big site, say Vogue, uploads it in his/her blog which is monetized and comments on it, is it fair use?

  6. capitolagirl says:

    Thanks for the great information, and thanks also to Ashe Mischief and her friend for providing clarification for the question of using photos in blogs. I’ve wondered this, so reading about here is a big help!

  7. jesspgh says:

    Ooh!! Great post! I was just contemplating this issue since I often will use a stock photo or screen grab of a pic of something I’ve bought or want to critique before I see it in person.

    Thanks so much to Ashe Mischief and her Legal Eagle pal!

  8. Freya, it would still be considered Fair Use, because it’s not the image itself that is being monetized, it’s the blog. If you were to copy the image from Vogue, and sell the image, that would be infringement because you’re interfering with their ability to make money off the print.

    There are many cases that deal with similar situations, in which say a picture would be printed in a book– this picture makes up 1 of several thousand images, and because it makes up such a marginal amount of the completed work, it qualifies as fair use.

  9. Freya says:

    Thank you so much Ashe Mischief! This is very informative post, thank you again.

  10. Thank you Ashe! This whole (c) this confuses the hell out of me sometimes. Now I’ll make sure to say something about any picture I post. =)

  11. lisa says:

    This was such an informative post! I remember that when I first began blogging I probably wasn’t as good about crediting photos as I could’ve been. This will be very helpful to bloggers just starting out, and for longtime bloggers it’s a useful refresher of what’s acceptable and what’s not.

  12. Catherine says:

    This post is extremely helpful. It’s always nice to get the confirmation of a soon-to-be lawyer that you are doing things the right way (or wrong, and now saved!) :)

  13. Kate says:

    This is a brilliant post. I have been looking for a statement that covers up all the points as thorough and clean as this one. All my questions have been answered and thank you so much for helping.

  14. parisoffice says:

    Please make attention, that the law is different in different countries. My website is in Germany. My layer told me, that there is no fair use if you have any advertisement on the site. This is the reason why we made a deal with an photographer on the fashion shows. We buy the pictures.
    A photo credit doesn’t protect you hurting the copyright!!!
    And I have to point out, that I know some photographers on the fashions shows who a very poor and have hugh financial problems, because they dont earn enough money on their job. If you take pictures from style.com or vogue, you don’t dammage Conde Nast, but a single person, who make a hard job to make these pictures.
    I can really recommend to make a deal with a photographer. They are interested in blogs and they will make you a good price.

  15. The Style PA says:

    For those of us in the UK, the fair use argument does not stand up here. Copyright will win most times. When I first started out I used a couple of images from websites and cited them as the source of the image. This doesn’t cover you.

    Sometimes these websites have licensed the image from the copyright holder for a specific use. That means citing them does not acknowledge the author of the image.

    It is a shame, but I tend to go with Creative Commons images wherever possible. When it comes to product images, you will rarely have to worry as they count as PR and any retailer who asks you to remove them is doing themselves no favours at all, and they know it.

    Hope that helps.

  16. Jennine says:

    paris and stylepa… it is mentioned that this is according to US law in the post. I don’t know the law in other countries, nor has a lawyer from anywhere else bothered to step up and write us.

    the reason why i posted this is to educate people about the realities of copyright law. we also advised you in this post that if someone asked you to take down an image, then unless you are prepared to invest in a lawsuit then take it down, because you may or may not win. the truth is, you can argue for it, but we never said that you are protected. fair use is determined by a judge.

    and we also said that if you make any money off the image, you are in a precarious situation.

    this is not to say that some of the big websites don’t benefit from the crediting system most bloggers have in place now. in fact, they must benefit greatly, as blogs drive traffic to their site. it’s advertising for them, and it helps their rankings which in turn enables them to charge more for their own advertising, which in turn enables them to pay their photographers. and which is probably why they haven’t gone after anyone.

  17. Lady Muscadet says:

    I’m glad this was of so much help to people!

    Ashe Mischief and I have exchanged so many emails on the matter that she is well-educated on fair use! I was going to answer Freya’s question but Ashe answered it (correctly) already!!

    I’ll pop my head in here when I remember to and try to answer any other questions.

    Thanks for publishing me, Jennine!

    xoxo

  18. MizzJ says:

    Great post, very informative and understandable for those of us not versed in “legalese”. This is a very interesting topic and we should all be aware of laws that threaten to change the current status quo; I have heard of politicians who are seeking to change current copyright laws so that owners of works only get copyright protections IF they apply for it, involving of course much red tape and fees – totally unfair! As bloggers we can have a part in public awareness of the issues, so be sure to keep informed!

    I do have one question though – One commenter mentioned that in Germany there is no fair use if you have ads on your site. How does this affect say, a blogger in Cali using a German image?

  19. Thom says:

    Good summary, and now I never have to do one – just link to this.

    A few points – first, as many people have mentioned, it’s important to note that copyright law differs for every country, although many countries have made international agreements such as the Berne Convention. To answer the comment above – copyright law is applied in the nation in which the infraction occurs. In other words, if you do something that’s illegal in the U.S. in the U.S., it’s illegal.

    I think the most important word in the article is “fair.” It is certainly unlikely, especially in North America, for a blog to be challenged on fair use. But I think it’s vitally important for blogs to conduct themselves in a fair manner. This means always attribute, always link back to original image source, and generally don’t just post every picture you find.

  20. This is such an important topic for bloggers to be clear about. Thanks!

  21. therightthing says:

    I have some issue with bloggers snagging images from sites– both major and not so major– without asking for permission from the copyright holder.

    Just because “borrowing” a photo may fall within the cracks of the law, it certainly doesn’t fall within the cracks of good business integrity.

    Those borrowed photos were either licensed at a great fee (with their own copyright and terms of use restrictions) or contributed by someone who earned a fee for the work for hire.

    Bloggers behaving like cowboys (the biggest offenders are ones who are too chicken to write under a real name) completely negates any respect for good journalistic practice. If you have a little personal blog as a hobby and credit the source, that’s one thing. But if you have some blog that you boost about its audience and earnings and then grab a photo off style.com– well, that’s pretty damn tacky and unprofessional to say the least. And, your readers will notice.

    Believe me, one day there will be a law suit with a ruling that sticks and before that happens bloggers need to find a more respectable way to get their media before they find legal notices in their mailboxes.

    Make everyone’s life easy, and ask the source for written permission first!

  22. Elana says:

    Such important for us bloggers to keep in mind. I ALWAYS give a photo credit to the images I choose to use with my articles. A journalism major, I could never take the unethical stance of NOT giving credit to the original site (or where I found it) or claiming the photo as my own.

    As for the other details, you’re right, there is the “gray area.” I need to refresh my knowledge soon so that I can avoid any issues…for the most part, I think I’m safe as long as I follow media ethics to the best of my ability!

  23. always try to cite my sources. now i make sure i keep track of where all the images i save came from.

  24. JT says:

    Well, THERIGHTTHING, style.com has raved about huge fashion blogs like Style Rookie, Sea of Shoes, and Bryan Boy and I’m pretty sure they’ve all used style.com runway pics in the past.

  25. Icy says:

    Thanks for such a clear, concise and informative posts. A great summary.

  26. Tyhats a great post. Thanks for sharing the wonderful information!

  27. Thats a great post. Thanks for sharing the wonderful information!

  28. Thanks for such a great post! This has shed a lot of light on an area of blogging that baffles me.

    I have one question though, how do sites like ShopStyle get away with copywrite issues? Surely they reproduce images and text from retailers rather than transforming them? Plus they use the content for monetary gain via affiliate programs which again seems to be contradicting intellectual property laws. Do they just have express agreements in place with the retailers?

    MFW x
    .-= Miss Fashion Whore´s last blog ..Fairground Bunny Cardi =-.

  29. Rachel says:

    Thank you for this article. It has inspired me to be more careful and make sure to site my stuff!

  30. Ahw..thats is so ridiculous. Nasty tactics and vulnerable one. Sorry Sir.

  31. You wote: “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!”

    This is not really a mixed message, it’s two messages coming from different sources. Designers telling you to lift photos from Style.com might not know a thing about copyright law, and they likely have no influence over what Conde Nast’s policies or decisions regarding litigatin. The Style.com disclaimer is the message from Conde Nast regarding how they feel about people using their content. That said, bloggers may well be protected by fair use. But as you said, judges decide on a case by case bases what constitutes infringement.

  32. TrenDee says:

    Hi Jennine,

    Thanks heaps for this informative post.

    I have a question:

    YOU WROTE: “Bloggers often make commentaries on images, saying ‘this is what I think about this trend…’”

    Would this be considered commenting on the subject (person wearing trendy clothes) within the copyrighted work (image/photography) but not necessarily commenting on the work itself (for example, ‘great shot, but not enough lighting…’)? In which case do we still have a fair use defence?

    Thanks in advance,

    TrenDee

  33. pikesan says:

    Hello, I enjoyed this post and gave me some piece of mind. After reading many comments saying that, “I linked back to the site where the image was” I wanted to point out what I read before finding this story. It’s from Social Media Examiner and was written by a lawyer, Sara Hawkins. Linking back is called attribution. Here’s what she says about attribution:
    #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).

    I’m always nice! But turns out it doesn’t help at all in terms of a fair use claim. In my case the guy who took the photos is claiming infringement and wants $3500 ea for 2 pictures of cars in a museum. On my car site, I linked back to the museums website for each image and even said, “You should go there, it’s great!” Is that damaging?

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