Fair Use, Copyright, and Images

I have a friend who freely uses images she finds on the internet to pretty up her blog posts, and at the bottom of each post, she always adds the caveat, “No copyright infringement intended.” That cracks me up because of course she intended to infringe upon the copyright — she blatantly and purposely used the image without permission. That is an infringement. Saying that no infringement was intended does not negate the perhaps illegal use of the image. Even giving credit or providing a link to the original photo doesn’t make the infringement legal.

Yesterday I spoke of “Fair Use” and copyright as pertains to song lyrics and told you how many words of a song written after 1923 you can legally use in your work. (None. That’s right, none. You can use the title, paraphrase the words, write your own songs, or purchase the rights to use the lyrics. Those are your only options. You cannot use a single word of the lyrics without permission.)

Fair use also applies to images, not just written works. Fair use laws allow using bits of copyrighted materials without having to obtain permission, though what constitutes “fair use” is murky and subject to interpretation by the courts. (And oh, just so you know, all original works are protected from the moment of creation, so if the work was never filed with the copyright office, if the work lacks a copyright symbol, the work is still protected.)

According to the US Copyright Office, there are four factors to determine what is fair use:

copyright1       The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

2       The nature of the copyrighted work

3       The amount and substantiality of the portion used in relation to the copyrighted work as a whole

4       The effect of the use upon the potential market for, or value of, the copyrighted work.

You can use of some images, such as images public domain images created before 1923 (unless they have subsequently been copyrighted). And you can generally use images in product reviews. Using a product image, such as a book cover, an image of a vehicle, or cold cereal, is necessary for a helpful review. Since the image is not the product and the owner’s rights are only minimally infringed upon, your use of the image falls under fair use.

Some people who post images on the internet do allow you to use their images with only attribution as payment (and they will state as much on the site where the images are posted, generally under a Creative Commons License). Also, many royalty free photos are available from various sites, such as Free Stock Photos, but you need to read the small print carefully to find what each photo requires of you before you use it.

If you use an image of an original photograph or work of art, even if you attribute it to the author and even if you link back to the original, you are in violation of copyright laws unless you have the artist’s permission to use the image. If you don’t have permission, you can be sued. And yes, bloggers have been sued over the use of images. One blogger I know used a photo she found on the internet, thinking it was okay to do so because it is general practice among internet users to adorn one’s blog with such images. When the owner’s lawyer contacted her about the matter, she removed the photo and thought that would be the end of it. But she was wrong. They sued her — and won. She is still paying them off. (And she still owes hefty attorney’s fees.) She was lucky. Others have had their sites removed from the internet in addition to all the other legal hassles.

So, if you do not know for certain if you can legally use an image (and the only way to know for sure is if the image is posted with such information), then don’t. It’s not worth the risk.

***

Pat Bertram is the author of the suspense novels Light Bringer, More Deaths Than One, A Spark of Heavenly Fire, and Daughter Am I. Bertram is also the author of Grief: The Great Yearning, “an exquisite book, wrenching to read, and at the same time full of profound truths.” Connect with Pat on Google+. Like Pat on Facebook.

One Response to “Fair Use, Copyright, and Images”

  1. rami ungar the writer Says:

    For the covers of my books, i used original images I created or images in the public domain. For “Snake” I had to research a certain painting just to make sure that it was from before 1923 and was currently copyrighted (lucky me, it wasn’t). Thanks for the warning, Pat. I’ll be extra careful from now on not to use any images I shouldn’t.


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