You may have heard that fair use is a defense to copyright infringement, but you’re not sure what that is. That’s completely okay. Fair use can be complicated, even for lawyers. Seriously.
But we love making sure that you have the information you need to understand this concept and how it might impact your business.
The purpose or context in which images are created doesn’t alter who owns the copyright to an image (unless specifically contracted). In general, the creator of the image is the copyright holder, which gives that copyright holder the right to reproduce the image, create a derivative image, or provide a license to others to reproduce, distribute, or create derivative works – this includes print releases.
However, there are specific limitations articulated in sections 107-118 of Title 17, U. S. Code. This includes the doctrine of fair use. Whether you’re a professional photographer or just getting started, understanding “fair use” is important. We have some other articles you might find helpful if you want to dive deeper on this topic, including Fair Use Doctrine & Your Photography.
So what is fair use?
Section 107 of Title 17, U. S. Code describes a list of purposes that reproduction may be considered “fair use.” These include: commentary, news, criticism, teaching, and research. But not all teaching or news use is automatically considered “fair use” – as the section 107 outlines four factors that must be considered by the courts in determining whether a particular use meets the “fair use” threshold. An acceptable purpose does not trigger some kind of free for all!
So what are those four factors?
- The purpose and character of the use, including whether such use is of a commercial nature or is for non profit educational purposes.
- The nature of the copyrighted work.
- The amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for, or value of, the copyrighted work.
The first one means using gifs or clips or even examples of others work in your online photography course (that participants are paying for) or posing guide is unlikely to meet the “fair use” threshold, even though it is arguably an “educational” purpose.
What makes someone’s use of an image “fair use”?
The goal of Section 107 and the fair use doctrine is to benefit society. The use of copyrighted work and the limitation of the rights of the copyright holder are considered to be of public benefit. What this means is that some of the four factors may be given more weight based on the type of work or use of the work. The bottom line is that under US law Fair Use cases will “always ‘call for case-by-case analysis.” The case that solidified this was Castle Rock Entertainment v. Carol Publ’g Group, 150 F.3d 132 (1998).
Let’s talk about a couple of cases that might help you understand fair use a little better:
- A search engine’s practice of creating thumbnails (reproductions) of images and displaying them on its own website did not undermine the potential market for the sale or licensing of those images. FAIR USE. The court considered that because the thumbnails were small and of poor quality in comparison to the original images and that the use was in order to help the public access the images uploaded by the copyright owner by indexing them, it held that this was fair use. Kelly v. Arriba-Soft, 336 F.3d. 811 (9th Cir. 2003).
- A heavily modified photo of a Wisconsin mayor was reproduced on a T-shirt and used to raise money for an event opposed by the mayor. FAIR USE. The level of modification of the image was considered significant by the court — the photo was posterized, background removed, text added, and a lime green outline featuring the mayor’s smile remained. The resulting image of the mayor, the court stated, “can’t be copyrighted.” It should be noted that the t-shirt producer did not also modify/edit the image. Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014).
- A disgruntled former commercial tenant used an unflattering photo of her former landlord in 25 critical blog posts. The landlord purchased the copyright in the photo and sued the tenant for infringement. FAIR USE. The Court held the use was considered noncommercial and transformative because, “in the context of the blog post’s surrounding commentary, the tenant used the landlords’ purportedly ‘ugly’ and ‘compromising’ appearance to ridicule and satirize his character.” Katz v. Chevaldina, No. 14-14525 (11th Cir. 2015).
- The United States Postal Service (USPS) licensed the use of a photograph of the Korean War veterans’ memorial sculpture for a postage stamp, but they did not obtain permission from the sculptor who held copyright in the underlying three-dimensional work. NOT A FAIR USE. The Court held that it was not enough to transfer the work from three dimensions to two dimensions (despite the creative use of photography and the appearance of snow). Gaylord v. United States, 595 F.3d 1364 (Fed. Cir. 2010).
Is using an image on the news the same as fair use?
The one area many photographers find themselves facing is that of a news organization using their images. There is a difference between using images or other copyrighted material for a fair use news or commentary purposes and using the images by a news organization. Just because a news organization is the one using the image does not automatically make it fair use.
For example, a television station’s news broadcast used 30 seconds from a four-minute copyrighted videotape of the 1992 Los Angeles beating of Reginald Denny. This was NOT A FAIR USE. The court held that the use was commercial and affected the copyright owner’s ability to market the video. Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).
It is likely, for example, a photograph of an incident used by a news organization to report on that incident would be held to be fair use, whereas the use of posed portraits of an individual involved in an incident but taken in a completely different context may not be fair use. Of course, as fair use is considered on a case by case basis, you should discuss your situation with an attorney.
What if someone has stolen my image and is claiming “fair use”?
In the US, district courts have held that prior to requesting a takedown notice, a copyright owner must consider the likelihood of a claim of fair use. In that case, the owner of an uploaded video claimed that the requester of the DMCA takedown did not consider fair use, and therefore could not have had a “good faith belief” that they were entitled to a takedown. The Court agreed that the failure to consider fair use when sending a DMCA notice could give rise to a claim of failing to act in good faith. Lenz v. Universal Music Corp., 572 F.Supp.2d 1150 (N.D. Cal., 2008).
What this means is that before requesting a takedown notice, you should consider whether the use could be considered to be “fair use”!