November 10, 2023
Within copyright law, the concept of ‘Fair Use’ stands as a crucial, yet often misunderstood, principle. It is frequently used as a defence against copyright infringement claims, but does it truly solve all copyright troubles?
In this article we explore the 'Fair Use' doctrine as it applies to images: its definition, global application, usage types, and the legal risks of misinterpretation. Get the facts about Fair Use from Copyright Agent.
‘Fair Use’ is a legal concept that exists solely within the copyright laws of the United States, codified in Section 107 of the Copyright Act of 1976, “Limitations on exclusive rights: Fair Use”.
Specifically stating that “the fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright” (US Copyright Act).
In layman’s terms ‘Fair Use’ offers some exceptions to copyright regulations…
…if that sounds too good to be true, it is. ‘Fair Use’ is not applied universally, is not absolute and claiming it as a legal defence is no guarantee that you won’t be held accountable for copyright infringement.
Various countries around the world have similar legal concepts, often referred to as limitations, exemptions or exceptions to copyright law or ‘Fair Dealing’ provisions depending on the specific laws governing the country. Each jurisdiction varies, but these provisions cover broadly similar usage types as ‘Fair Use’ but do not align exactly with it.
Take note if you're an online image publisher operating outside of the U.S., ‘Fair Use’ doesn’t extend its protective umbrella to your publication.
Beyond its geographical limitations, ‘Fair Use’ law allows for limited use of copyrighted material in specific circumstances without needing to obtain permission from, or make payment to, the copyright holder prior to publication.
So what implications does this have for your blog, organisation or business?
The 'Fair Use' doctrine seeks to find an equilibrium between copyright holders' exclusive rights to their content and the public's interest in utilising copyrighted material for purposes like News Reporting, Teaching, Parody and Personal Use. We’ve highlighted a few illustrative examples below:
Educational Use: You want to add a copyrighted image into an offline classroom presentation or academic paper for educational purposes to help facilitate learning and critique. This is permitted under ‘Fair Use’. However publishing it online is a different scenario. Official websites of educational institutions, such as colleges, schools or universities, have certain uses that are permitted under the Technology, Education and Copyright Harmonisation Act in the US, however entities not on that list should be cautious publishing copyright protected images online as this can move beyond the scope of this exemption, and you could be held liable for the publication of the image.
News Reporting: You want to add a copyrighted image into a news article to enhance your audience's understanding of an urgent news event or to provide visual evidence for an urgent event being discussed. This can be permitted under ‘Fair Use’ but only under very specific conditions, and is not an automatic or universal exemption.
There are very specific criteria for ‘Fair Use’ in news reporting that must be met including, but are not limited to;
Furthermore defining what a news article is and whether your organisation is reporting the news is a different kettle of fish. Official news organisations can qualify for exemptions based on the importance of the event, the time relevance of the event and whether the image has been properly attributed. If you don’t meet these criteria you will likely be infringing the rights holders copyright. Remember if you don’t attribute the image, or use an irrelevant image that isn’t specifically linked to the news event you are reporting, or you use the image for something that isn’t considered news then you may face legal consequences for publishing the image.
Parody or Satire: You want to publish a copyrighted photo on your blog, to humorously comment on or critique the original work or its themes. This form of artistic expression is protected under fair use. However, publishing a complete image, without any attribution to the original author and without any overlaying commentary is, legally speaking, skating on thin ice.
While the ‘Fair Use’ doctrine allows for the use of copyrighted images in parody or satire, it is vital that you keep in mind that this use should not adversely affect that potential market or economic value of the original work. In layman's terms this means that the parody or satire should not serve as a direct substitute for the original image and should not diminish the demand or profitability of the original work.
Non-commercial Personal Use: This exemption under the 'Fair Use' doctrine allows you to incorporate a copyrighted image into personal endeavours, such as a private blog post, a social media update visible only to your close connections, or a private presentation. It offers you some leeway for individual expression without infringing copyright laws. However, it's important to note that utilising such images in a public-facing blog, a commercial website, or a publicly accessible social media page — even if you only have a small following — goes beyond the scope of this exemption and may lead to potential copyright infringement issues.
To determine whether a particular use qualifies as ‘Fair Use’, there are four key factors involved:
Purpose and Character of the Use: Specifically this factor scrutinises whether the use of the image can be deemed transformative. In essence, this entails a careful examination of whether the original image has undergone substantial alterations that introduce new expression or meaning not present in the original work. Transformative uses, where the original work is creatively modified to serve a different purpose or convey a fresh perspective, are generally more inclined to be deemed ‘Fair Use’.
On the contrary, instances where an image is directly reproduced with minimal changes are less likely to meet this transformative criteria. Such reproductions typically do not introduce substantial creative elements or significantly alter the essence of the original work. The primary objective of this factor is to distinguish between mere duplication, which may infringe on the copyright holder's rights, and uses that genuinely contribute to the development of new ideas, interpretations, or artistic expressions. It's important to emphasise that each case is evaluated on its own merits, considering the specific alterations made to the original image and the extent to which they add new value or meaning. The “transformation line” is constantly evolving.
Nature of the Copyrighted Work: This factor involves a careful evaluation of the characteristics of the original work. Works that primarily contain factual information or are categorised as non-fictional, for example images directly related to specific news events, are generally more likely to be considered ‘Fair Use’ if using it for educational, critical, or commentary purposes.
Whereas highly creative, fictional, or unpublished works, for example images from photoshoots, are usually afforded stronger copyright protection. This is because they represent a significant investment of creative effort and are considered to have a higher intrinsic value to the creator.
The aim of this factor is to balance the rights of the copyright holder with the broader societal interest in allowing the use of copyrighted material for highly specific purposes. Again, this factor is just one of several that are taken into account when determining fair use, and even if your use passes this criteria the other factors may still outweigh it as each case is assessed individually based on the unique circumstances surrounding the use of the copyrighted material.
Amount and Substantiality of the Portion Used: ‘Fair use’ is more likely to apply when a small, less significant portion of the copyrighted work is used. However when using images, it is important to note that the impact of this exception to copyright law varies. In some cases, using even a small portion of an image could be considered a significant portion, especially if the section of the image used contains a distinctive or central element of the work. Therefore, it's not always accurate to assume that using a small portion of an image automatically qualifies as ‘Fair Use’ and publishing even a part of an image may lead to copyright claims heading your way.
Effect on the Market Value: The final and most critical factor in ‘Fair Use’ determinations as it directly affects the economic interests of the copyright holder. If the use of the copyrighted image in question directly competes with the original work or significantly diminishes its market potential, it becomes less likely to be deemed fair use.
With the case of images from, for example, an image agency or photographer, whose core business is selling image rights, almost any use affects the image’s market value and has an impact on the rights holders economic interests. Any use that interferes with the original work's ability to generate revenue or fulfil its intended commercial purpose is less likely to be considered ‘Fair Use’.
The Fair Use Balancing Act: So determining whether your use of a copyright protected image is a ‘Fair Use’ of the image must take account of all four of these factors. There is no single factor that alone determines whether a use of a copyright protected image is a ‘Fair Use’ or not, but instead any determination rests on a careful balance of all of these factors with most weight being given to the effect on the market value of the image. Each case is evaluated on its individual merits. It's recommended to seek legal advice if you have any doubts about whether your use of an image falls within fair use parameters before you publish it.
In this digital age, where content sharing is widespread, it is increasingly essential to understand the concept of 'Fair Use' and related legal principles. Publishers, regardless of their size, must be responsible for their actions when publishing copyrighted material. Claiming ignorance of copyright law will not serve as a valid defence when faced with a copyright infringement claim.
While ‘Fair Use’ offers valuable exceptions to copyright law, it is not a get out of jail free card for the unrestricted use of copyrighted material. If you are continually publishing copyrighted material claiming ‘Fair Use’ then your use may actually not be so fair.
'Fair Use' is just one component within the broader framework of US copyright law designed to uphold the intellectual property rights of creators. It permits certain uses of their work, primarily in private settings, while upholding the rights of copyright holders in the public domain, ensuring they are duly compensated for their creative endeavours and sustaining the vibrant ecosystem of originality that brings us the images we cherish.
If you are in doubt about your use of a copyright protected image, license it or find an alternative.
Copyright Agent - www.copyrightagent.com