When is use of a Photograph Fair-Use?
Generally, use of someone else’s photograph is infringement, it is not Fair-Use. Copyright Infringement occurs when someone uses a photograph without the permission of the photographer. The use can include use on the internet, on a webpage, social media, media, advertisement or marketing use.
Copyright Infringement Damages
Once an infringer causes infringement to an photographer, the infringer may be liable for damages they caused to the photographer. Damages for copyright infringement includes losses of the photographer, including:
- Lost sales;
- Reduced sales;
- Lost profits;
- Lost license fees;
- Reduced future licensing fees;
- Reduced future value of the work;
- Reduced future value of photographer’s other works;
- Attorney’s fees; and/or
- Statutory Damages (which may range between $750 up to $150,000 per work infringed for each timely registered work).
In addition, the photographer whose work was used without permission may be entitled to seek equitable damages including an injunction and attorney’s fees.
Generally, photograph fair-use is a defense to infringement. It is basically someone saying, I copied your photograph, I didn’t have your permission, but I limited my use so that society was better from my unlawful, impermissible use. Fair-use was a legal concept created to excuse some unlawful use on the basis that society can benefit from unlawful, unauthorized use of a work of art, like a photograph. Photograph Fair-Use is generally an excuse against infringement which, if determined by a court, is a defense to the claim of infringement.
Typically, courts use four factors to determine is a use qualifies as photograph fair-use. The Four Fair-Use factors are:
- The purpose and character of the use
- Was the use transformative by adding new expression or meaning?
- Was value added?
- Is the work used for commentary, criticism or parody?
- Is the use for commercial or non-commercial use?
- The nature of the copyrighted work
- Is the work factual or fictional?
- Is the work published or unpublished?
- The amount and substantiality of the portion taken;
- Was the portion copied significant or insignificant?
- Did the portion copied go to the heart of the work?
- Was the portion copied de minimis?
- The effect of the use upon the potential market for the work.
- Did your use deny the copyright owner from making use or income from the work?
- Did your use impact the copyright owner’s exercise of their copyrights?
If you have questions about photograph fair-use, please contact our office to speak with one of our copyright attorney’s who works with photographs and photographers.