You’ve heard that a picture is worth a thousand words, but when it’s protected by image copyright, it’s only worth three: “stop and desist.”
This is sort of a legal joke. But it highlights how concerned people are about finding their protected photographs copied online without authorization.
The purpose of copyright laws is not to grant the author the power to restrict access to their work, but to promote its development.
Article I, Section 8, clause 8, of the United States Constitution states the objective of copyright laws is “to promote the Progress of Science and useful Arts, by guaranteeing for limited durations to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
The balance between the creator’s rights and the public’s interest is tricky. When in conflict, the balance swings more heavily towards the public’s interest, which is often contradictory to what the creator perceives to be fair or reasonable.
This article will define copyright and its scope in detail.
Then, we will examine the concept of fair use in relation to internet picture usage. The objective here is to have a better understanding of how to use images created by others in a manner that both respects the author’s copyright rights and permits others to use it.
What Is Copyright?
Copyright is a federal law of the United States that protects original works of authorship. A work of authorship encompasses literary, textual, theatrical, artistic, and musical works, among others.
Copyright attaches immediately upon the creation of the original work and applies to both published and unpublished works.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, touch the home button on your iPhone), apply paint to canvas or paper, or record your next hit, you have a copyright (with some exceptions).
Copyright is an automatic right, unlike trademarks and patents, for which the author must file particular paperwork. Registration is required to enforce the rights, however an author is not required to register anything in order to utilise the “circle c” symbol, which indicates that the work is copyrighted.
Copyright comes with a multitude of exclusive rights that allow the owner to do or authorise a variety of actions and exert extensive control over the work. The owner of the copyright may do four things: (called exclusive rights)
As online content creators, curators, and managers, you understand the importance of using images to attract the reader’s attention, add a visual element to comments, demonstrate with an infographic, and for a variety of other purposes. Utilizing the proper image may swiftly transform a post from dull to amazing. It can assist tell a tale in ways that words alone cannot.
However, unless you are a photographer showing your own work, you will likely need to use someone else’s work. There are numerous sources. While the fundamental rule is that you cannot use a copyrighted work without the owner’s express permission, there is a significant legal framework that permits millions of individuals to view and share photographs online every day.
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What Is Fair Use of Copyright? Can I Use That Image?
Fair use is distinct from free use. Fair use is a legal exemption to the owner’s exclusive rights to their copyrighted work.
It has nothing to do with our perceptions of fairness and everything to do with maintaining a balance that favours the public good. It is a delicate balance, but one that frequently makes the copyright owner want to shout.
Since this talk is limited to the use of photographs online, I will utilise examples that are unique to this context.
Product reviews are a typical example of a fair use of an image online. If you want to review a book, a new piece of technology, a culinary item, or any other thing, it is likely that you will need to add a photo. But not some washed-out, overexposed, gloomy photograph with dirty laundry in the backdrop.
You then navigate to the manufacturer’s website, right-click the image, and save it to your website. A photograph cannot replace the original item, hence the owner’s rights should be minimally affected. Therefore, your use of the copy-protected image is likely permissible under fair use.
Fair use exists for the greater good, allowing copyrighted works to be used without authorization for the public’s benefit. Imagine being unable to use photographs of a deceased dictator to illustrate his demise. Or the inability to discuss fashion without displaying the clothes being discussed.
However, there are limitations, and only a court has the authority to make the ultimate decision. According to Section 107 of the Copyright Act:
Fair use of a copyrighted work for purposes such as criticism, commentary, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement.
5 Things to Think About Before Using Copyrighted Images
You’re probably thinking that this is absurd, and who has that much free time to figure out all of this for a blog image? In actuality, though, if you answer question 1 of the four-part fair use test, you’ll have a good idea of whether you’ll have a leg to stand on if you’re challenged.
Do you comprehend the concept of fair use? Even if you include attribution and/or a link back to the original, you are not in the clear. Attribution has nothing to do with fair usage. This is a problem associated with plagiarism, which is distinct from copyright.
Fair use essentially means that you may infringe on someone else’s copyright without consequence. If your use falls within fair use, you are not required to provide attribution (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 correct track.
If you’re using the image to embellish a blog post, you should reconsider, or better yet, obtain permission or purchase a stock image.
Have you modified the picture? If the new work that contains the copyrighted image is a “transformative work” and no longer resembles the original, there is a larger chance that an exception to copyright infringement will be found.
You are including a picture in an infographic. Is the image now included in a video for one of the Copyright Act-permitted uses?
4. What percentage of the image are you using? If you use a thumbnail and link to the original image, you have a stronger chance of establishing fair use than if you simply share the original image. If you are writing an article about facial features and using only a portion of the face from an image, you have a greater chance of arguing fair use than if you used the complete image.
#5: Are you willing to risk having your website taken down, receiving a cease and desist letter/bill/DMCA notice, or being sued? The Digital Millennium Copyright Act (DMCA) provides extremely robust tools for copyright holders to safeguard their digital creations. By hitting “publish,” you may be opening a can of worms.
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When it comes to photographs, assume they are protected by copyright and do not use them without permission. What it comes down to is that if you need to utilise another person’s image, make sure it fits clearly within one of the protected reasons or get legal assistance if there is a large investment of money or time in your project.
Fair use may be an exception that allows you to use copyrighted photos, but if the copyright holder disagrees, you’ll likely engage in a debate or risk having your site taken down by your server. Unfortunately, there are no notable instances that define clear and fast standards regarding fair use and Internet photographs.
However, photographers and graphic artists frequently make a career by selling or licencing their work, and if we all just stole what we wanted, we would be avoiding the law and interfering with their ability to control how their photographs are distributed.
Fair use of copyright has been contested in relation to the use of words and images in print publications. However, the Internet is still in its infancy in terms of fair use guidelines.
Without clear standards, we are left to interpret regulations that were drafted long before digital communication was conceived and did not account for the current ease of sharing. While it is unlikely that the average blogger will be sued for copyright infringement related to an image, keep in mind that you could be the “last straw” that causes a lawsuit.
If you are contemplating using photos from huge agencies, you should be aware that their legal departments are only tasked with detecting infringements. Even if you alter the file name, there are simple ways to look for photographs online. And if you’re considering cropping the image to hide the copyright notice or other identifying information, you should reconsider, as the maximum fine for doing so is $25,000, plus attorney fees and damages.
There are numerous sources for free photos, including public domain, licenced Creative Commons, and inexpensive stock photographs, so you should not need to employ copyright-protected works to enhance your website, create a presentation, or make a video. However, if you must have the image, you should inquire first. You would be astonished by the number of individuals who would willingly allow permission to use their photographs.