Posted by Mickey H. Osterreicher — 19 Jul 2012

Photography & The Law: Copyright and Fair Use

It is fair to say that millions of images have been posted on the Internet since the first photo was uploaded only twenty years ago. In light of that fact I think it is important to have a discussion about "fair use." As posted in an earlier blog, the U.S. Copyright Office maintains a very extensive website and answers to almost all questions may be found there. It states "one of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies . . . ." "This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U.S. Code)." "One of the more important limitations is the doctrine of 'fair use.'"

"Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law." Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair use." That section also sets out four (4) factors to be considered in determining whether or not a particular use is fair (discussed below).

Huge Billboard by Tenzin Lekshay

According to the Copyright Office - "Copyright protects the particular way authors have expressed themselves. It does not extend to any ideas, systems, or factual information conveyed in a work."

So on one hand we have a section of the Constitution that was enacted to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries," and on the other hand we have the First Amendment to the Bill of Rights that provides that "Congress shall make no law ... abridging the freedom of speech," which has also been interpreted to include "freedom of expression."

Which brings us to photography, where reproducing someone's pictures without permission, credit or compensation might create a disincentive to creating new images. The other side of that argument is that (like most laws) some exceptions are needed, lest copyright overly limit the right of access to information. The Copyright Act seeks to balance these competing interests, by exempting from protection ideas and other things that are considered to be in the "public domain," while at the same time protecting the tangible expression of those ideas, such as we find in photographs.

Prior to 1976 it had been up to the courts to strike a balance between those interests. For the most part civilization has evolved (sometimes revolutionized) by building upon and improving previous ideas and works. Consider all the painters who developed their own style by studying the masters who had come before them which in turn lead to the first photographers who began their careers as artists. The main difference now is how readily digital images may be copied and shared.

In 1976 Congress built upon previous law by enacting an updated Copyright Act which included many precedential legal decisions regarding fair use. The preamble to Section 107 states: "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." For example, under the doctrine of fair use someone reviewing a photography book might be able to use one of the photos included in the book with the review that would otherwise be considered a copyright infringement.

As mentioned previously, the Copyright Act of 1976 contains a list of the various purposes for which the reproduction of a particular work may be considered fair use. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of 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

4. The effect of the use upon the potential market for, or value of, the copyrighted work 

hope photo.jpg

All four factors must be considered together and depending on the issue at hand some may carry more weight than others. In many cases it may not be readily apparent whether the use is fair or an infringement but it is usually a little easier when it comes to photographs since the nature of the original work is fairly self-evident. If someone uses your photo without your permission for a commercial purpose such as in an advertisement or for a poster (Shepard Fairey vs. AP where the artist Shepard Fairey was sued for using a photograph by Mannie Garcia (freelancing for the AP) in his now iconic poster of President Obama) that will most likely be viewed as an infringement. It makes no difference if the infringer acknowledges the source of the photograph or gives you credit although if the photograph in question contains a credit and is used without permission or credit, those factors might help prove a "willful infringement" (to be discussed in a future blog). 


Whether the photo was used in whole or in part will also help determine whether it is an infringement or fair use, as will the effect that use will have upon your ability to market the photo or on its resale value. (Photographer wins copyright case against Artist where the well-known artist Richard Prince was found to have "appropriated" far too much of the work of French photographer Patrick Cariou). Both of the cases cited here also deal with the "purpose and character of the use" in what is known as a "derivative work." Even if used for a commercial purpose, if the new work is "transformative," in that it substantially changes the original photograph into something else it may qualify under the fair use exception to copyright infringement. Cases of this nature are very fact specific and as noted in comparing the original photographs with the newly created artwork, they involve a very close and sometimes extremely subjective analysis.

The best practice when using an image belonging to someone else is to get permission from the copyright owner before using it. If that is unfeasible you should avoid its use unless you are  extremely confident that it would constitute fair use. Even so it may lead to very costly litigation. When in doubt consult an attorney.

Mickey H. Osterreicher is of Counsel to Hiscock & Barclay, and serves as general counsel for the National Press Photographers Association (NPPA). The NPPA is a non-profit organization dedicated to the advancement of visual journalism in its creation, editing and distribution. NPPA's almost 7,000 members include photographers, editors, students and all those interested in photography willing to abide by a code of ethics. Since its founding in 1946, the NPPA has vigorously promoted the constitutional rights of journalists as well as freedom of the press in all its forms.

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