In today’s online world, photographers often promote their work on the internet, using website and social media pages to help generate publicity and interest in their photographs. Some of these websites show amazing photographs which demonstrate the talent of the photographer. However, because these websites are on the internet, potential customers simply copy the images off the internet with a few clicks of a button and then use them without compensating the photographer.
Photographer have rights to their photos. Use of a photo online is typically infringement, not fair use. Fair Use analysis typically involves a four prong test and in many cases fails.
Typically, this type of use, is unlawful and often treated as copyright infringement. To avoid liability, some users attempt to claim that their use is fair use. In addition, some websites claim that the images posted on the site are fair use images. However, just because some images are free, you need to review each image carefully to see what license is provided or if the photographer has retained their rights.
Typically, commercial entities do not have the right to lift images from the Internet to use for their own purposes without paying the photographer, and photographers have protection from those that seek to behave in this way.
In a recent case out of Virginia, a photographer who took a time-lapse photograph of Washington DC, posted the photo on his website and image-sharing site, like Flickr. A cropped version of the photograph was posted on another travel related website. After receiving a demand letter, the travel related website removed the photo from its website. The Federal Appeals Court found that the use was infringing and not a fair use images.
Fair Use Images
In making a determination of fair use, the Appeals Court applied a four prong test.
- Was the image used for commercial purposes?
- Was the image transformed by the copier?
- How much of the image was used in comparison to the entire image?
- Did the use have an effect on the market value for the image?
The court found that the use by the copier failed on all four counts, namely that the use was commercial, cropping was not transformative, the portion of the image was substantial in comparison to the entire image. In addition, the court ruled that if the behavior became common and acceptable, the licensing market for professional photography might well be dampened. The use of the image, if done in print, would have been infringement and thus use online was also infringing.
If ordinary commercial use of stock photography constituted fair use, professional photographers would have little financial incentive to exert the time and energy into producing their work. If you have a photograph which is being used without your permission, please contact one of our copyright attorneys to discuss your options.