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Using Images from the Web: A Guide to “Fair Use”

By Anna Wang, Legal Researcher at Shake

People commonly repost images to flesh out their text, point out something cool, or serve as a good backdrop to their website. Some even do it as a way to gain popularity online.

The Twitter account @HistoryInPics has gained nearly a million followers by using this strategy, often using copyrighted images. Is that okay?

As a general rule, you can’t publish an image you don’t own without the permission of the owner. It’s not enough to give credit to the author, unless the image is covered by something like a Creative Commons license, where the author has stated beforehand that you may use her images in certain circumstances so long as you give her credit.

Images are protected by copyright law, which grants creators exclusive control over their works for a limited period, giving people an incentive to create. The public benefits both from the creation of new works and from the access they get to these works after these works enter the public domain.1

“Fair use” is an exception to the general rule. Under fair use, images, writing, and other works that would otherwise be protected by copyright law may be used without the author’s permission. The fair use exception is narrow, however, so it’s important to understand how to apply it.

Unfortunately, there are no hard and fast rules for when fair use applies.  It comes down to the following four factors2, which are all considered (so ticking off one box does not automatically mean your use is fair use):

1.   The purpose and character of the use.

Using copyrighted works for educational, informational, journalistic or critical purposes, as opposed to for-profit commercial purposes, is favored from a fair use standpoint.3 For example, using an image from the web as part of a website you’ve set up for your fifth graders to learn about art is more likely to qualify as fair use than using the same image as part of a web banner for your business. Or, to draw from the @HistoryInPics example, if the images used in this article are copyrighted, GigaOM would be able to say that they did so for journalistic and commentary purposes, though the hypothetical court would still have to consider the other factors and determine if the use of those images was really necessary.

What if you use a screenshot of a recent TV episode in a review of the episode that is published on a for-profit website? The fact that the article is on a for-profit website doesn’t negate the fact that it is a favored use.4

Another element weighing in favor of fair use is if the use is “transformative.” Transformative uses are those that add or modify enough of the original work to give it new “expression, meaning, or message.”5 For example, parody is transformative, because its distorted reflection of the original work gives the original work another layer of meaning. If the use is truly transformative, then the other factors usually become less important.

2. The nature of the copyrighted work.

Is the work based on facts or is it creative? Factual works enjoy less copyright protection, since the law finds that there’s a greater public need for facts to be widely available.6 It may be easy to point out the factual and creative elements in an autobiography–the historical and biographical facts are factual, while the expression of those facts (the prose) is creative.

However, photos can be difficult to categorize. Photography is an art form that requires a great deal of skill, which means that photos have a built-in creative element.7 The determinative factor is the purpose behind the photos. If photos are primarily meant to express the photographer’s ideas or feelings, the photos are creative. This runs in contrast to photos that are meant to show off the object of the photo, such as a person’s abilities as a model. The photographer is not as essential to the outcome, since the photo is capturing the real world and has a factual objective. However, the factual objective is balanced by the built-in creative element of photography, so this factor will most likely come out neutral in the case of object-oriented photos.8 

Another important factor is whether a work has been published. Unpublished works get greater copyright protection than published works, because the author has a right to control the circumstances of her first public expression.9

3. The amount and relative significance of the portion of the work used.

The less you use of the copyrighted work, the more likely your claim of fair use will stand. However, which part of the work you use matters. If you use the “essence” of the work – for example, the focal point of an image — the small portion you took is outweighed by the significance of the portion taken.10

It also helps your case for fair use if you downscale an image so that it’s of no prominence–only putting as much focus on the image as is necessary for your audience to recognize it–such as taking a poster and shrinking it so that it’s one of many tiny images on a webpage.11

4. The effect on the potential market for the copyrighted work.

Does your use of an image harm the potential market for the copyrighted work? If it does, then it’s less likely to be regarded as fair use.12 This applies even to derivative markets, markets that the copyright holder could potentially enter. For example,  the publishers of The Seinfeld Aptitude Test, a Seinfeld trivia book, were found to have infringed upon rights of the copyright owners of Seinfeld, in part because of its harm to the derivative market.13 Though the copyright owners of Seinfeld had not entered the trivia book market, they should not be punished for making the artistic choice not to do so.14 This goes back to the idea that copyright law benefits the public by incentivizing creators to create.

If your work is transformative, it makes it more likely that it won’t hurt the copyrighted work’s potential market. A sufficiently transformative work, such as a parody, is different enough from the original that it isn’t a market substitute.

What happens if you’ve infringed someone’s copyright?

The internet may be vast, but copyright owners can easily find out if you’re using their images with software or Google’s Search by Image,15 and the penalties for copyright infringement can be severe. A court can order you to stop using the copyrighted work. The owner may recover actual damages from you–the lost profit from your infringement and any profit you gained from your infringement.16

If the copyright owner registered the work with the U.S. Copyright Office, then the owner may elect for statutory damages instead of actual damages and receive an award of between $750 and $30,000 in damages for each work, all infringements inclusive. At the discretion of the court, this amount can be lowered down to $200 for innocent (unintentional) infringement or raised to $150,000 for willful infringement,17 so you could get sued in the millions for using multiple copyrighted images.

Keep in mind that copyright protection exists from the creation of the work, even without copyright registration. No matter how large or small the website you take the image from, infringement is infringement. Even if you think someone won’t lose any profit from your use of their image, any profit you gain from using that image can be taken from you and your bad-faith use of the image will count against you in the court’s determination.

Infringement doesn’t require receiving a take-down notice from a copyright owner. Your use is infringement the moment you put up another person’s copyrighted image without his permission,18 and you could be slapped with a lawsuit for copyright infringement at any time, even after you’ve removed the infringing image from your website.

How can you use images without infringing someone else’s copyright?

Remember, once an image is created, it has copyright protection, regardless of whether it has the © symbol and is registered with the U.S. Copyright Office. The best way to make sure your use of an image doesn’t infringe on someone’s copyright is to get permission from the owner of the image. Attribution without direct permission is not enough, unless the image is covered by a Creative Commons license or something similar.

Creative Commons has created licenses for image owners to offer to those who want to use their images. These licenses communicate what uses the owners allow without you having to ask them directly. Some images on Flickr uses these licenses. These licenses are subject to the users who upload the images actually owning those images, so your use of these licenses may still result in unknowing copyright infringement.

You can also get images from the public domain through such databases as Pixabay and morgueFile.

If you still can’t find what you’re looking for, there are always stock photo sites. You might have to pay for those images, but you’ll have the comfort of knowing you’re safe from a copyright standpoint.

How can you protect yourself from copyright infringement?

First, give notice of your copyright by using the © symbol. A lot of people are unaware that they shouldn’t be taking whatever images catch their eyes. You don’t need to register your copyright with the U.S. Copyright office to use the © symbol.

Second, consider registering your work with the U.S. Copyright Office. It clearly establishes your copyright in the work and gives you additional protections.

Third, with images in particular, consider using software that protects your images from being copied. For instance, the blogging platform WordPress has a plugin that does just that.

And if someone has infringed your copyright?

Notify that person’s hosting provider of the copyright infringement, and the hosting provider may take down the infringing image. You can also notify the infringer in writing that they are infringing on your copyrighted work. If they do not comply and stop using your work, you may need to consider legal action.

  1. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (the copyright holders of television programs brought a suit against the manufacturers of home videotape recorders, and the court looked at the policy purposes behind copyright law to determine that the manufacturers’ sale of the home videotape recorders was not contributory infringement; this was because the time shifting was unlikely to cause harm to the copyright holders’ potential market and the copyright holders who licensed their works for broadcast on free television were not very likely to object to the time shifting).
  2. The four factors are laid out in the fair use section of the copyright law. 17 U.S.C.A. § 107 (West).
  3. Id.
  4. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 592-93 (1985) (the court recognized that many of the favored uses–commentary, criticism, news reporting–are published for profit in the United States, and to remove all such uses that are part of a for-profit machine would render that area of the Copyright Act meaningless).
  5. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
  6. See Harper & Row, 471 U.S. at 563.
  7. See Nunez v. Caribbean Int’l News Corp., 235 F.3d 18, 23 (1st Cir. 2000) (the court examined the purpose and nature of photographs that had been taken by a professional photographer for use in the modeling portfolio of a beauty pageant winner; it determined that it was fair use for a newspaper to use copies of those photographs, given the newsworthiness of those photos).
  8. The Nunez  court went through this analysis. Id.
  9. See Harper & Row, 471 U.S. at 563.
  10. See Harper & Row, 471 U.S at 564-65 (in examining this third factor, the court concluded that it did not matter that a relatively small portion had been taken from President Ford’s memoir and run in a magazine when the passages taken were among the most powerful in the book).
  11. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 611 (2d Cir. 2006) (a book publisher used a Grateful Dead poster, but shrank it down to a thumbnail; the court found that it was sized so that it was just large enough to be recognizable).
  12. This factor is so significant that fair use can be negated by showing that the original’s potential market would be harmed if the use in question became widespread, Harper & Row, 471 U.S. at 568.
  13. Castle Rock Entm’t, Inc. v. Carol Pub. Grp., Inc., 150 F.3d 132, 145-46 (2d Cir. 1998).
  14. Id.
  15. Google’s Search by Image is also accessible by going to Google Images. You can drag your image into the search box or click the camera icon in the search box, then paste the image url or upload the image.
  16. 17 U.S.C. § 504(b).
  17. 17 U.S.C. § 504(c).
  18. One of the exclusive rights copyright owners have is to display their images publicly. 17 U.S.C. § 106(5). “Anyone who violates any of the exclusive rights of the copyright owner…is an infringer of the copyright or right of the author.” 17 U.S.C. § 501(a).