These days, it can be difficult to distinguish between a commercial Web site and an editorial Web site, as more companies add blogs to attract visitors. This has led to questions about the use of photography, such as -–
I have a blog on the Web site of my commercial business, in which we report on topics of interest in my industry. Do I get the same “fair use” and “freedom of the press” protections in using photography on my blog as a newspaper or magazine would, even though the primary purpose of my blog is to drive traffic to my Web site to grow my business?
The safest route for any blog, regardless of whether it is a commercial blog or editorial blog, is to only incorporate material, including photography, that you own or that you have explicit permission to use.
“Fair use” is the exception in copyright law for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research when using copyrighted materials without permission from the copyright owner. While this is often associated with the news media, “freedom of the press” does not mean that news organizations may use copyrighted materials without restriction.
Neither is fair use limited to only editorial purposes. Instead, a commercial Web site’s use of copyrighted material may fall under fair use if it meets certain requirements. It’s just usually more difficult to meet those standards when used for commercial purposes.
Further, a photographer who believes you have infringed his copyright may be more likely to make a claim against you, as a corporate entity, than, say, a lone blogger in a basement somewhere. Let’s face it: you’re easier to track down — and more likely to have deep pockets.
Fair Use and Photography
Standing behind the defense of “fair use” always carries risk, because only a court of law can determine whether a use of a photograph without the permission of the photographer/copyright owner is fair. Understanding what makes a use “fair” may help you evaluate whether you should take the risk.
Copyright law attempts to balance public interest and the rights of authors/artists, so that artists will be encouraged to create and the public will benefit from this. The classic example is the quotation from a book being reviewed. Since an author usually does not review his own book, the impact of the quotation on his interests should be minimal. If, however, so much material is quoted that the review will substitute for a purchase of the book, the use will not be considered fair.
Fair use is intended to allow the unauthorized use of copyrighted materials for the benefit of society, believing such use serves a higher purpose. But it has its limits. In determining whether a use is fair, the court is required by the Copyright Act to consider -–
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
An unauthorized use will more likely be considered a fair use if a small amount of the entire work has been used. While such a use is more difficult with photographs than when copying text, it can occur when the photos are in the background of a video, for example.
Simply grabbing a digital image from the Web to illustrate a blog post is unlikely to be considered fair use. When the unauthorized use directly competes with the copyright owner’s business or potential for income — such as, to sell usage of his photos to corporations like yours — a court will usually find that the use was not a fair use.
Editorial vs. Commercial Use
In addition to the question of fair use, you also face the issue of “editorial use” vs. “commercial use” as it applies to the people in the photographs you publish on your blog.
When a photo is used for editorial purposes, it is not necessary to obtain the permission of the person in the photograph. However, the person has a “right of publicity,” which prevents you from using their photograph for commercial purposes without their permission. Permission is generally documented by a model release.
So, how do you tell the difference in the uses?
Editorial use of a photograph is found in a newsworthy item. In those cases, the person’s right in the use of his image must be evaluated in light of constitutional interests. “Newsworthiness” is a First Amendment interest and is broadly construed.
Courts traditionally have defined public interest or newsworthiness in liberal and far-reaching terms. It is not limited to dissemination of news in the sense of current events, but extends far beyond that to include all types of factual, educational and historical data, or even entertainment and amusement, concerning interesting phases of human activity in general.
Commercial use of a photograph usually occurs when the picture of the person has been used for advertising, endorsement, and/or trade purposes. While the photograph of a person may be used for something that is sold for profit, such as in a book or a print, that is not the test for a commercial use. Instead, if someone looking at a photograph would think that the person in it is promoting or endorsing a commercial product affiliated with the photograph, then the use is commercial.
Since it sometimes is difficult to know if the use will be considered commercial or editorial, it’s always safer to get the model release. Photographers who license their photos for commercial use generally attain model releases at the time of the shoot.
The Best Course: Don’t Take Chances
The bigger question is, why would your company take chances with fair use and editorial/commercial use when there are so many safer options?
Why not simply ask the photographer for permission? Or buy images from a stock photography Web site or a microstock site like iStockPhoto, where images cost as little as $1? Or — if you’re looking for free images — how about searching the Creative Commons Web site?
Grabbing images for your company blog without making sure you have the right to use them simply opens you up to unnecessary risk. You should expect to pay others for their work, just as you expect to be paid for yours.