With an infinite amount of photos readily available through an equally infinite number of online mediums, website owners, bloggers, and other content creators may be tempted to use photos they find online for their own sites.
While the act of copying and pasting or downloading a photo you find online and placing it on your own webpage is simple, the copyright implications of using an online photo is complex and still largely misunderstood.
At a fundamental level, all photos, no matter where you find them are copyrighted the moment the photographer takes the photo, regardless of whether the photographer has formally registered the photo with the U.S. Copyright Office. This copyright provides the photographer an exclusive right to reproduce his or her photo, to create derivative works based on the original photo, and to distribute copies of the copyrighted photo. (“Copyright Act of 1976” 17 USC Section 106).
Despite the breadth of exclusive rights afforded to copyright owners, there are three instances where you can use the photo for your own website: (1) the use qualifies as “fair use” as defined by 17 USC Section 107; (2) the photo is in the public domain; or (3) you have a license to use the work.
This article will first discuss Fair Use, and then will touch on the public domain and obtaining a license for use.
In order to balance the copyright owner’s exclusive rights with the First Amendment public interests, the Copyright Act permits “fair use” of copyrighted work as non-infringing use. Thus, if your use of the online photo is considered “fair use,” you will not be infringing another’s copyright. (17 USC §107). Some of section 107’s enumerated examples of fair use include using copyrighted work for criticism, comment, news reporting, teaching scholarship or research.
A Court will look at four different factors when determining whether a particular use is considered, “fair use.” These factors are: “(1) the purpose and character of the use, including whether such use is of a 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; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” (17 USC §107).
Under the first factor, in addition to looking at whether your use is commercial, courts will focus largely on whether your use is “transformative.” (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)) For example, the transformative analysis may consider whether you are just uploading the exact same photo to your website or if you are incorporating that photo into your own creative collage. (See Cariou v. Prince, 714 f. 3d 694 (2d cir. 2013) the incorporation of another’s photo into a collage created a new piece of artwork with a new aesthetic considered to be transformative).
The second factor, the nature of the copyrighted work, speaks to how expressive the work. Fair use is more likely to be found for use of work that is technical and scientific rather than work that involves creative expression, including fictional plays and photographs.
In the third factor, the amount and substantiality of the portion used pertains to how much of the photo you are using - the whole photo, or just a portion of the subject’s hand or foot. The less you use, the more likely it to be fair use.
Finally, the last factor is the effect of the use upon the potential market for or value of the copyrighted work depends on whether your use of the photo inhibits the copyright owner’s use of the photo. For example, if you have made a photo available on your website that the photographer only makes available to paid subscribers, your use is affecting his potential market and thus is less likely fair use.
As stated earlier, using a work that is in the public domain will not be considered copyright infringement.
All in all, the four factors are considered together with a very fact-specific analysis of each case. Under your own circumstances, you can ask yourself whether your use of the photo is fair use by considering all four of these factors.
If you’re attempting to use an old photo that was created or published a considerable amount of time in the past, it may within the public domain and thus available for your reuse. However, whether a photo is in the “public domain” is a complicated question that should be answered with the help of an attorney. The Copyright Act has a set of intricate and specific rules regarding when a copyrighted work enters the public domain. This is based on the idea that a copyright is not a perpetual right, but is one that has a specific term or duration.
Obtaining a License to use the Work
Despite having the possibility that your use of a photo will be considered fair use, the best way to safeguard your website and your company from copyright infringement is to obtain a license from the photographer or copyright owner for your intended use.
Many stock photo websites offer a method of paying for a license to use its photos. Alternatively, free websites like Creative Commons (creativecommons.org) allow users to find photos that are already licensed out to users for various permitted uses, including commercial and personal use. For content creators who are looking to obtain a specific photo not available on a stock photo website, there are a couple options for obtaining the license.
First, you can contact photographer directly and simply ask for permission to use the photo. The photographer may say yes and may allow you to use the photo for free or for a certain amount. With the photographer’s permission, it’s important that you and the photographer have an understanding of how exactly you will use the photo, that you don’t exceed that agreed upon scope, and that this understanding is in writing.
The second option is to work with an attorney before contacting the photographer for counsel on negotiating with the photographer or to help draft a license agreement to use the photograph. Working with an attorney will ensure that your exact intended use for the photos will be included in the licensing agreement.
Deciding on whether to you use an online photo
In summary, without obtaining a license to use an online photo, the main question is whether your use is considered “fair use” based on the four factors discussed above. Since this is a complex question with no bright-line rules, it is best to consult with an attorney regarding your potential use and your options for obtaining a license to use the photo.
If you have questions about using an online image or other copyright concerns, please give us a call at 650-271-9395, or email us at firstname.lastname@example.org.
Written By: Melissa Hong
Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction. Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.