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Copyright Theft vs Fair Use: How to Determine if Your Work Has Been Stolen or Adopted for Fair Use with a 4-Part Test

One of the misunderstood characters in the world of copyright and intellectual property is the concept of fair use.

For some, it’s used as a proverbial get out of jail free card – for others, it’s an important part of effective teaching, reporting and expression.

But what exactly is “fair use”, who decides what’s fair and why does it matter to you as a photographer, writer or designer looking to sell your wares in the ever-expanding online marketplace?

Comment, Criticism and Parody

Fair use is what keeps the wheels of praise, criticism and review freely spinning. Without the ability to quote a portion of a play, reproduce an element of a gallery display or passage from a novel, artists would be in an awkward position.

On the one hand, able to stave off harsh or uninvited criticism; but on the other, those good reviews that encourage people to visit unheard of attractions and commentary included in local color segments on the evening news would likely be close to nonexistent.

The other key component to the concept of fair use is parody.

While it is often said that mockery is the highest form of flattery, it can be hard for a creative to swallow seeing their photograph, painting or song aped in any media.

Again, we’re faced with the difference between generating buzz for our product and tolerating someone else making a living off of our own hard graft.

Unfortunately, the notion of fair use isn’t determined by dollar signs – if it was, the creative world would be a very different place.

The Four Factors

So what’s a photographer, writer, singer, artist or other creative supposed to do when they find their work has been effectively hijacked by someone else? First, you’ll want to ensure you’ve protected the integrity of your own copyright appropriately.

This means registering your work with the copyright office and branding it accordingly, but that’s really for another article.

Today, we’d like to focus on helping you understand whether someone has “stolen your work” or “adopted it for fair use”.

The clearest path to this is using the same four-part analysis that the courts use when a case regarding “fair use” makes its way to trial. These “four factors” are:

  • the purpose and character of the use
  • the nature of the work in question
  • the proportion and significance of what was used
  • the impact that use has on the work’s potential market

To work our way through the factors, we’re going to talk about my friend Elizabeth, who recently had one of her photographs snatched by a motivational blog.

I woke up famous, but no one gave me any credit

Elizabeth primarily shoots landscapes, and is well known for her familiarity with various scenic spots in northern California.

One day, she was out scouting for sunset vistas and captured a shot of a lonely tree on a hill.

Photo Credit: Elizabeth Hahn, www.emhahn.com

She entered this image in a contest, and won a prize – but never publicly published the image outside that competition.

One morning a few weeks later, I was flipping through my newsfeed on Google+, where a lot of photographers congregate to share and promote their work, as well as learn new things, and saw Elizabeth’s picture in the “what’s hot” list.

I thought it was a little weird, but then, it was an award-winning picture. So I grabbed a quick screen shot of her fleeting moment of fame, emailed it to her, then went about my day.

Later I got a message back, asking if I’d looked at the picture closely – I hadn’t, so I did. It wasn’t just Elizabeth’s picture – it had a quote running across the tangy orange sky.

She explained she knew nothing about the person who’d posted it and had no idea why her image was being used. So what happened there? Someone got a case of the “save as”, that’s what.

Determining Fair Use

This is a screen grab of the image as used by the other party – below, you’ll find another, from the blog it appeared on in addition to the Google+ feed.

In this case, there is no comment, criticism or parody – just a motivational blog owner re-saving an image with some text over the top and publishing it for their own purposes.

But, in some circumstances, a judge would still award “fair use” to a defendant in this sort of circumstance. So, what about the four factors?

Purpose and Character of Use

There are two questions that help define the “purpose” and “character” of the use.

First, has the original work taken on a new meaning as the result of the use?

And, second, does the “new’ use add value to the original in terms of insight, aesthetic or information?

Looking at Elizabeth’s original image and the subsequent posts by the blogger, it’s easy to see how someone could interpret that the image was “transformed” and you could argue the toss for “added value” as well. We’ll call this one a wash.

The Nature of the Original Work

The key factors here are: does the use benefit the public by providing useful facts or information; and, was the work previously published.

Elizabeth’s image was “previously published” as a winning photo during the contest to a fairly narrow, non-commercial audience.

Without any location information, the “benefit” to the public of someone else republishing her image is negligible. We’ll call this one for Elizabeth.

Proportion and Significance of Use

In Elizabeth’s case, the entire image was reproduced.

For the most part, if your use includes a smaller portion of the whole, you’re more likely to skate by claiming “fair use” of something that is in the public domain. We’ll call this one for Elizabeth.

Impact on the Work’s Potential Market

Does the “new” image deprive Elizabeth from potential earnings on her image?

One of the most widely cited cases in this arena is Rogers v Koons, where the court effectively said, “it doesn’t matter if the photographer didn’t think about making a sculpture, it matters that someone might buy sculptures of the picture”.

While Elizabeth is unlikely to market her images with quotes floating in the carefully-framed sky, the fact that someone else might do so is most definitely an infringement on her business potential.

We’ll call this one for Elizabeth.

Was this Use “Fair”?

Overall, there isn’t a “fair use” case here for taking a photographer’s image and posting it without credit on a motivational blog, selling posters of it or anything else.

In this case, Elizabeth asked the blogger to remove the image as it had been used without permission and the “use” wasn’t one she would’ve agreed to in the first place. The blogger posted a line crediting the photo to Elizabeth, but didn’t remove it.

Elizabeth filed a complaint against the blogger with Google, as the host. Google reviewed the evidence and quickly worked to remove the images.

Ultimately that investigation showed that Elizabeth wasn’t the only victim, and as the blogger had scores of uncredited images the user’s Google+ account was removed, as was the blog itself.

In this case the decision regarding “fair use” was made by the company hosting the hijacked image – as a result, not legal intervention was required.

Had Elizabeth not received a satisfactory resolution from Google, she could’ve sought legal representation to regain control of her intellectual property and ultimately the court would’ve made the determination of whether the blogger’s use of her image online (and in whatever other potential avenues) was “fair use.”

About the Author: Kimberly Tweed studied magazine editing and publishing at Drake University. She spent over a decade working her way up the food chain at award-winning newspapers and magazines in Southeast England before returning to her native Oregon, where she works as a writer, designer and communications guru.