Navigating Copyright and Fair Use Online

On the web, we're told that content is king. But creating all of this content can seem daunting to marketers and business owners alike. These days everyone from summer interns up to C-level executives are expected to contribute to their company's social and content presence. However, if putting the finishing touches on your latest blog post includes scanning through a Google Image Search and right-clicking to save the best photo, you may be setting yourself (and your company) up for a precarious legal situation.

How does Copyright Work?
This blog post is copyrighted. In fact, this entire blog and website are copyrighted too - but that's not because BFM spent hours filling out paperwork or standing in line at a government institution. In the US, copyright applies at the moment of creation for writings, photographs, music, artistic creations and more. If it's been published, printed, recorded, or otherwise captured in a physical form, it is likely copyrighted. You don't even have to include a formal © symbol for copyright to take effect--unlike trademarks, which require a bit more administrative work.

Copyright laws protect content creators by establishing that they and they alone have certain "exclusive rights" to the works they have produced. This includes the right to:

  • Reproduce the work
  • Create derivatives of the work
  • Sell or distribute the work
  • Rent, lease or lend the work
  • display or perform the work in public

What's Fair Use?
The exception to the above, however, is known as Fair Use, and it allows people to use otherwise copyrighted items under certain circumstances. Fair Use recognizes the tremendous opportunity that comes about when people have access to things they didn't create and can utilize them as building blocks for even better or different creations. Specifically, Fair Use applies to:

1. Comment & Criticism: Providing a critique of something someone else did. Example: Using a playwright's dialogue in a parody criticizing the play itself.
2. News reporting: Creating factual coverage of a person, event, or topic. Example: Including quotes from a recorded speech within an article covering the event where the speech was given.
3. Teaching: Using information in an instructional nature at a nonprofit institution. Example: Providing photocopies of an article to students for instruction in a classroom.
4. Scholarship & Research: Citing information in an academic or scholarly work. Example: Including a passage from another work in order to prove the author's theory.
5. Reviews: Providing interpretation or analysis of a creative work. Example: Publishing an excerpt of a book within the context of a book review.

For most online content creators, the Comment, Criticism and Review Fair Use exceptions are relevant (and hopefully applicable) to day-to-day blog writing and social media content.

[Image courtesy of pakorn /]

What determines Fair Use?
We already outlined the situation in which Fair Use is able to apply, but what actually determines whether or not something counts as Fair Use?

Section 107 of the U.S. Copyright Law says that the following items will be considered when deciding if Fair Use applies in a given circumstance:

(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.

Consider these examples:

Example #1: A product review site posts copyrighted images of a blender on its blender review webpage, along with affiliate links to e-commerce sites for purchasing the product.

  • Purpose & Character: "Commercial nature" applies here because the image is placed on a webpage that generates revenue for the company. Indication: Not Fair Use
  • Nature: Basic product photo that is technical in nature, as opposed to artistic. Indication: Not Fair Use
  • Amount: The entire image was used. Indication: Not Fair Use
  • Effect: The image actually has the capability to increase the potential market and generate additional sales for the manufacturer. Indication: Possibly Fair Use

Outcome: Using a product photo in a product review such as this falls squarely within Fair Use guidelines, even though three out of the four Fair Use considerations seem to indicate otherwise.

Example #2: A marketing company writes a blog post called "Social Media for Dummies" and includes a cropped photo of the Dumb & Dumber movie poster.

  • Purpose & Character: While the company as a whole is a commercial entity, the blog itself is not seeking to drive revenue, and is purely educational. Indication: Possibly Fair Use
  • Nature: A creative work. Indication: Not Fair Use
  • Amount: Only a portion of the original work is used. Indication: Possibly Fair Use
  • Effect: The use will likely not have a direct impact on distribution revenues for the movie, but does dilute brand value by associating it with an unrelated work. Indication: Not Fair Use

Outcome: Because the blog post itself is not discussing, critiquing or reviewing Dumb & Dumber, the image is being used solely for illustrative purposes of an abstract nature. In this case, Fair Use does not apply and the blog is violating copyright law.

The clear difference between these two scenarios is whether an image is being used to identify exactly what is being talked about (i.e. a product, person, location) or is rather being used in abstract to provide visual collateral.

Example #3: A business service provider sends out a monthly newsletter to subscribers, and includes the full text of an article from a local newspaper.

  • Purpose & Character: Non-commercial, and primarily informational with no monetary compensation expected. Indication: Possibly Fair Use
  • Nature: A creative work. Indication: Not Fair Use
  • Amount: The entire article was reposted in the newsletter. Indication: Not Fair Use
  • Effect: Because users were sent the entire text of the article, they now have no reason to view the original source, potentially hampering newspaper sales. Indication: Not Fair Use

Outcome: The fact that the entire article was included in the newsletter means that Fair Use does not apply. An easy fix for this situation is to instead include a summary of the article in the newsletter and link back to the original source for readers to view.

Why should I care?
Using text, images or sounds that you did not create without the creator's permission is stealing. If that's not threatening enough, consider the judicial system, which says that using copyrighted material inappropriately is a felony punishable by six-figure fines for a first offense and up to 10 years in jail for repeat offenders. Ready to re-think "borrowing" that awesome image you found on Flickr yet?

Copyright infringement penalties don't end with site owners. In recent years, marketing companies have also come under legal fire if their clients are found to be in violation of the law. An SEO company in South Carolina was fined $770,750 when a judge ruled that the SEO company's client was selling counterfeit golf clubs through their website. Adding insult to injury, the actual website owners in this case only wound up being fined $28,250--a mere fraction of what the SEO company had to pay.

On a smaller scale, a web copywriting company wound up paying $4,000 for a photo they could have purchased for $10, but instead chose to download and use without authorization on a client's blog.

The only way to protect yourself, your company and your clients from potential litigation is to ensure that anything posted by you or on your behalf has been properly licensed. Unfortunately, many people wrongly assume that linking a text or image back to its original source enables them to use whatever content they want. In actuality, providing attribution is an online courtesy, but in no way prevents a copyright infringement claim.


[These adorable puppies have nothing to do with the topic of this blog post, but because they're copyright-free, so I can use them anyway! credit: Mereliz]

Where can I find images to use?
Fear not, good content creators! When Fair Use doesn't apply to what you want to create, you are still able to find images that are either "copyright-free" (meaning the creator has waived his or her copyright claim) or can be licensed from the creator.

As you are searching, note that "royalty-free" does not mean "copyright-free." A royalty-free label indicates that the creator does not require any future payment or proceeds from your use of their work, but there may still be an upfront cost to purchase the usage license.

While committing to a monthly stock photo subscription might seem like a considerable expense, consider the legal (and associated financial) ramifications of using questionable content.

Below are a few great free and paid options for "copyright-free" images.

Free Options - searches multiple sites including Flickr, Google Images & YouTube for items that have been properly licensed - all images can be used, including commercially - all images are available for commercial use, but not for redistribution - images can only be used non-commercially - images are free as long as attribution can be provided
stock.xchng - images can be used commercially, but not for redistribution - images are available for artists and illustrators to alter as part of a larger work

Paid Options - plans starting at $49 - on-demand pricing starts at $29 for two images; subscriptions start at $199/month - individual photos starting at $5 - various subscription and credit-based plans available

Additional Fair Use Resources
Want more information? Luckily this topic has been bubbling to the surface in tandem with the growth of online content hubs, so there are plenty of resources to refer to.

Legal Text from Read the law as it currently stands - have your in-house counsel provide an interpretation applicable to your daily workflow Fair Use Overview: Legal view of Fair Use law written in laymen's terms with examples
Columbia University Fair Use Checklist Checklist of main factors to determine probability of Fair Use
Stanford Copyright and Fair Use Center: Compendium of resources, including recent case law and news
American University Center for Social Media - Fair Use: Codes and best practices for Fair Use in the social space

Do you have any copyright stories you'd like to share or know any good resources for stock photos that we may have missed? Let us know by tweeting @BFMweb.

*Author's note: I'm a marketer, not a lawyer. While I've done a lot of research to provide you with this information, you should have an actual attorney review your company's legal policies for image and content use.

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