How much use is fair use — i.e., permissible use — when it comes to graphics and photographs you “find” on the Internet?
Not too much. As I said a while back in a chat with friend John Hawkins:
What’s the most common mistake you see bloggers making? What are you seeing people do that could get them sued?
Well, it’s fair to say that well over 90% of bloggers are not risking any legal trouble. Most people write their original thoughts, they make legitimate links, and even things like hotlinking graphics, even aside from the copyright issue, are probably not actionable. It’s interesting to think about whether if you knocked out someone’s website with a hotlink to a graphic, he could come after you on a trespassing theory…
But if there is any single problem that seems to consistently be out there, it’s copyright infringement regarding the use of photographs from news services.
Well, let’s talk a little bit about that. One of the toughest areas for bloggers to make a determination about, because it’s kind of nebulous in the law, is fair use. Can you give us a quick guideline to follow? How can bloggers steer clear of trouble in the copyright arena?
Fair use is a great doctrine in copyright law, but it’s a little hard to apply on an as-you-go basis, especially in regard to photographs. The rule of thumb on all fair use is probably at what one point are you replacing the need for readers to view the original work by providing yours?
For example, the Associated Press’ view regarding text is that the headline and the lead paragraph of every story may not be quoted exactly as written in a blogger’s story or anywhere else because that is what they sell.
Now, without acknowledging that they are right or wrong about that, it’s an internally consistent position. As a general rule, you look at the percentage of work used, but what the AP is saying is in this case — almost without regard for the rest of the story that’s used — people who are scanning a site that has paid for the Associated Press feed are looking at the headline and the first paragraph. That’s the value.
Beyond that kind of special case, you generally want to look at the percentage used and whether, in order to get the full value of the original work, you still need to go to the original or not.
With photos, it’s much more complex. I think you can make a rule of thumb regarding photographs that there is usually not a fair use basis to use anything like a recent new picture from a newspaper or some other site on your blog. All things being equal and keeping in mind that there are exceptions upon exceptions, if in doubt, when it comes to pictures, you should not display it on your website.
Notwithstanding having said that loud and clear, I still have to pull certain blogger friends’ chestnuts out of the fire on this very issue a little too often. True, the copyright owners’ demands for damages are typically preposterous, and these cases are not hard to settle if you have a lawyer friend to help you out – but making this mistake is so 2004.
So, today, via JDSupra’s @IPLawAlerts, a little vindication, and a little reminder for bloggers, PowerPointers and everyone else out there who wants to use a picture that’s “all over the Internet,” via Travis Crabtree of the Texas firm of Looper Reed & McGraw (a former journalist), who posted a handy piece called “The Law of Using Images from the Web on Your Blog“: Excerpt:
Here are a few tips and rules about using images on your blog or website. Not only is simply copying something from the web a moral issue, it can get you into legal trouble.
Don’t Copy and Paste
Yes, the image is on Google Images. Yes, it would be easy to cut and paste and it fits with the topic of your post. But, just because it is on Google images, doesn’t mean it is free game. You don’t have to file something with the copyright office or attach the © for the image to be copyrighted. Bloggers like to brag about their social media prowess and not wanting to upset them. Photographers are often the same way and they come to the defense of their own. . . .
What about Fair Use?
How much time do you have? . . .
Use your own
I try my best to use my own photos when I can, or simply show the symbols of the companies I am referencing. My images often focus on my kids. They will only be cute for a few more years before they turn into teenagers so I might as well take advantage of it while I can. Otherwise, I will have to pose the family pet into ridiculous poses.
Yeah, so, me, I keep the family off the Intertubes — making sure, of course, to more than compensate for their absence myself. But, like Travis, I’ve become a big believer in using my own pictures for blog posts (and it should go without saying that I am a big believer that blog posts are enhanced by pictures). Mine come off my Flickr account, which is comprised mostly of cityscapes and other people-free vistas, and, as regular readers know, also includes plenty of courthouse pictures. (You can use my pictures, too, if you like; just click the “Request to License” badge on my photos.)
No, it doesn’t matter if you’re not making any money with your blog. No, it doesn’t matter if the picture is already all over the Internet. No, you are not special — except in the way you are special, of course; just not this kind of special.
Stop stealing pictures!