Photography & Copyright & Fair Use – What You Need To Know

Photography & Copyright & Fair Use – What You Need To Know
The Internet is a veritable treasure trove of media, both free and protected. From high quality images of bananas to low quality videos of the latest viral challenge, nothing seems sacred. With the courts continually muddled up with cases that have trouble defining copyright infringements and theft of ideas, it’s hard to discern just what, exactly, constitutes any kind of ownership over virtual media.
 

No matter the medium, copyright laws are in existence to promote art and science by securing the ideas of those that have them, providing an incentive for the ongoing pursuit of such concentrations. While the ideal world would be one that is a fair balance of rights belonging to the creator and those of the public, more commonly the public receives far more support. In terms of image use online, the best information you can arm yourself with is that of not only basic copyright law but also how to properly use such images in a way that respects the creator while taking advantage of fair use laws.
 
Copyright
Creation: When you set out to produce your own work, be it art or music, some form of copyright automatically protects it. This does not mean your idea is protected, though. Instead, you must have actually produced something for the law to come into effect. Simply telling the judge you had the same idea, as the individual that actually created it will not stand in court.
 
No Paperwork Necessary: Copyright, surprisingly enough, does not require you to fill out 50 pages of paperwork to secure your work. That enjoyable process only envelops trademarks and patents. While you can register it to add a bit more protection, under current law, anyone that creates something is legally allowed to immediately slap on the copyright symbol.
 
Copyright Rights: As with most laws, this protection comes with stipulations that give power to the owner that others do not have. This includes the ability to reproduce the work, display it publicly, create works based on the piece and, most importantly, distribute the work or copies of the work for monetary gain including sale and rental. This is an important part of the law to note, as it is the list of abilities that cannot be overstepped when wanting to post an image that avoids copyright infringement.
 
Exceptions: All of this is wonderful news for the starving artist, yet there are exceptions to keep in mind. This law does not protect words, short phrases, slogans, blank forms, reproductions and government works.
 
In today’s world of titillating titles and fantastic photos, authors and publishers alike understand the absolute necessity of utilizing visual media to garner page views. Advertising companies try their hardest to come up with ads that are so visually enticing people cannot do anything but click on the quiz asking them about their gender. With this online cultural and business set up comes the need for images by individuals that do not have any idea in the slightest on how to operate a camera or a paintbrush, leaving them to turn to the internet for its vast selection of available content.
 
The general rule is that you cannot use copyright material without the permission of the owner, but this gets muddy. What about sharing images through Twitter or Facebook? Is that the chink in the armor, so to speak? This territory falls under the term “Fair use.”
 
Fair Use
This is the legal loophole in the copyright law. Fair does not equal free, however it is the exception to the rule by providing the public with a means to use the work without asking. It legally gives limited and reasonable use of the work so long as it doesn’t interfere with the owner’s rights and their legal right to handle the work at their discretion.
 
An example of this is a product review. Because it is in the interest of the public, reviewers are legally allowed to take the high quality images made by the owner and post those to a blog. Since it does not impede on the object itself and does not prevent the creator from doing anything with the product, it is not in violation of copyright.
 
As with the copyright law, when the use of an image is contested as illegal, there are four issues that are taken into consideration. First, the purpose and character of the image’s use are determined. For instance, was it an image of a bird for a non-profit nature site or for a for-profit art gallery? Secondly, the nature of the work is examined. Third, the amount of the work in question that was used is considered. Finally, its effect on the work’s potential market and its value is calculated.
 
Altogether, the first piece is the absolute most important as it will determine if the court even needs to pursue analyzing the remaining three factors. As far as pictures are concerned, laws generally protect the first release of an image, but once it is out there, the laws tips in favor of the public. Photos also run into issues regarding the third factor. Literature can be quoted and songs can be diced into clips, but images are rarely, if ever, not entirely used. This means that if you are turning to copyrighted images, you will generally be using the entire work, not just a section, making it absolutely imperative that you really key into questions you need to ask yourself before publishing any copyrighted pictures.
 
The Big 5
1.  Do you really understand fair use? Remember, fair use is using someone’s work in a way that does not impede on his or her rights as protected by law. Even if you cite them as the creator, it is not fair use; it is what is known as plagiarism and follows an entirely different set of laws and regulations.
 
2.  If things go terribly, can you afford it? On top of the possibility of other legal consequences like being sued, you need to be sure that if that event does occur, you have a strong case in court to justify why your publication of the image falls under fair use. Whether you win or lose, the expenses incurred may not make it using the image worth it.
 
3.  Why are you using it? If your answer is to decorate your site or help sell your own products, go refresh your understanding of fair use. To use an image legally without offending copyright, it needs to educate the audience or criticize something. Basically, so long as it is used for some altruistic purpose, it is fair to use.
 
4.  Is the image cropped in any way? Maybe you’re one of those users that only publish a section of an image. Similar to the purpose behind using the image, it should be cropped in a way that amplifies the text. If you’re writing about how to grill a steak and crop out a steak from a barbeque panorama, your chances of successfully arguing fair use increase dramatically.
 
5.  Is the image altered in any way? If you take the picture and alter so much that it hardly resembles the original work, it begins to push into the territory of it being its own, new image, increasing the chance that you’re not breaking any laws. If, however, it is put in a border or given a sepia tone to fit a presentation, it’s time to consider what the presentation is for, how the image relates, and then reread the fair use laws.
 
To Conclude
Copyright rules are doing their best to catch up with the modern era. Instated at a time by people that could have no possible concept of the future of data sharing and exposure, courts today are working hard to establish guidelines that define the original laws with the language of today. While you can interpret the laws for yourself, always play it safe. Get permission directly from the creator or, if that is not possible, seek the advice of legal counsel in regard to an images’ use. If anything is off and the owner of the copyright does not agree with what you have done, your entire site can be shut down in addition to having to pay untold legal fees.
 
Also, don’t just assume the bigger companies will care less. In fact, with so many resources, they have entire teams dedicated to find their images used in infringing ways. Even if you crop, alter or change the file name, with so much power, they have the ability to track down everything and charge fines of over $25,000 for misuse. 
 
Though this is absolutely horrifying for smaller blogs and companies that barely earn enough to keep going every month, there is a ray of light. Free services, such as public domain and creative commons, provide images at no cost. There are even super cheap stock photo sites that can fit any budget. And, as stated before, if you are really into an image, simply email the creator and ask. You’ll find that most of them are decent human beings and are more than happy to share their work.
 
Remember, fair does not equal free. While it does allow the public some wiggle room to display images in a way that benefits society, it still is designed to protect against the use of someone else’s creation to increase another’s monetary gain whether from page clicks or ad revenue. Follow these basic guidelines and there should be no issues. And, as with many things in life, it is much better to be safe than sorry in an arena that could end up costing you more than you could ever manage to pay back.
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