Using Pictures in Your Blog & Fair Use

Looking at Manolo’s Shoe Blog the other day gave me food for thought. I like the way he uses images in each post. For a subject like fashion, these pictures are critical. But it begs the question: when do bloggers have right to post images to their blogs, and under what terms?

Disclaimer: I am not a lawyer, and I am not giving legal advice in this post!

Now back to Manolo’s Shoe Blog. I am just using that as an example, and actually most (all?) of the images he uses appear to be affiliate links. Thus I am guessing he may have license (through the affiliate agreement) to use the product pictures to link to the respective products’ pages.

But let’s assume we’re not talking about images that are just affiliate links, but rather images related to the content of the story. For instance, you’re blogging about the new Star Wars movie, and you include a thumbnail of the movie poster. Or maybe you’re blogging about a photographer, and you post a small version of one of his photographs. Is this legal?

In the USA, it comes down to Fair Use.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1. the purpose and character of the use, including whether such use is of a 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; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

So, for instance, if you post the text of an entire book on your blog, and do not criticise it all, and your site is commercial, and what you are doing destroys the market for that book, you are almost certainly violating copyright.

But if you post 3 sentences from the book in a blog entry talking about the theme of the book, and you discuss the specific literary elements of the quoted passage, you are most certainly within the rights of Fair Use and you do not have to ask for permission.

Now, many photographers, writers, and sites will say something like “content cannot be used in any way without permission”. This does not however hold if it’s Fair Use — only when it’s not Fair Use do you have to ask permission.

But images are a bit trickier than words. Take “substantiality of the portion used”; if you post a thumbnail of an image, you are basically posting the entire work (resized), rather than a snippet. Further, if the owner of the image is granting exclusive license of that image to a single party, your posting of it will violate the contract the owner and licensee have, and thus may destroy the market value of the image. On the other hand, it’s hard to critique an image or piece of art without posting it in some form for reference. And isn’t the ability to write literary criticism one of the points for Fair Use in the first place?

It seems the entire matter (in the USA, at least) is firmly in the gray area for now. So if you post other peoples’ copyrighted images in your blog, it might behoove you to familiarize yourself with the copyright / Fair Use laws of your country.

Author: andyh