Fair use or fair game?

A $15,000 settlement. A $1.2 million verdict. A $30,000 statutory award. There can be real consequences for news organizations who, seeking to illustrate a story, grab a photograph off the web or social media without licensing it from the photographer. Indeed, a whole class of lawyers and law firms, sometimes called “copyright trolls,” exists out there seeking to cash in on unlicensed usage. These lawyers and firms “troll” the internet for unlicensed images and then immediately file lawsuits or settlement demands hoping for a quick payment that usually amounts to many many times the cost of a license. The tactic often works.

Why does it work? Because the law on when a news organization (or anyone else) can use a photograph without a license does not have bright lines, and many newspapers would rather settle, even at high rates, than risk testing those lines and potentially paying even more. While the law does allow for some “free” uses, that is the exception, not the rule. Copyright law is designed to make sure that most uses of someone else’s creative content are compensated. So, what are the best practices to mitigate the risk of drawing a copyright suit and to put yourself in the best position to win a copyright suit if one is filed? Here are my Top 10:

1. Get a license. The best and most effective way to avoid a copyright claim over a photograph is, of course, to license it. A license does not have to be especially fancy or legalistic. If you want to use a photograph someone posted on social media, you can even accomplish this through a comment or direct message. It is better to get something than nothing! At a minimum, you want your license to specifically identify the photo you want to use and the location of the use (g., “for use on all platforms of the Daily Planet, worldwide”). But a word of caution: be sure that the person from whom you are seeking permission is actually the copyright holder, that is, the photographer. Just because someone posts a photo online does not necessarily mean that they took it.
2. Be careful about using images from your archive. Copyright issues often arise when a newspaper, to have art for its story, recycles a photograph from its archives. This is because in many cases, the license for the initial use does not extend to future uses. Sometimes licenses are for a one-time use or for a limited date range. Check the terms of the license before publishing.
3. Be diligent about following the terms of Creative Commons licenses. Creative Commons licenses are licenses in which photographers have unilaterally granted permission for others to use their photographs — they can be found on sites like Wikimedia Commons. But sometimes these licenses have restrictions such as they require attribution, or the photos may only be used for certain purposes. You must take these conditions seriously. Failure to abide by them may void the license.
4. To rely on “fair use,” comment on or transform the work. The purpose of copyright law is to encourage creators to create. Photographers are in the business of selling their photographs. They would be out of business if anyone could just use their photos without compensation. But, legislators have long understood that copyright law cannot be so strict as to totally prohibit the public from commenting on or transforming creative works such as photographs. The doctrine of “fair use” allows the “free” use of copyrighted photographs for these purposes. The law establishes four factors when determining whether a use is “fair.” Most relevant to photographs are factors (1) and (4).
   
   Factor one looks at the “purpose and character” of the use. It is asking why are you using this photo. Are you using it because there is something important about that specific photograph? Are you using it for a different purpose than the one for which it was originally created? Or are you using it simply to illustrate the story?  If you are simply using it to illustrate the story — if any other photo of the subject would do — then the use is much less likely to be “fair.” If you are commenting on the photo (e.g., noting that this is the photo that won a prize and commenting on its composition) or are transforming it (e.g., cropping it, putting it in a timeline, marking it up), then the use is more likely to be “fair.”

5. Be especially wary of photographs taken by professionals. Factor four looks at the “effect on the use on the market for or value of the original.” Although anyone who takes a photograph has a copyright in it and can sell it, professional photographers obviously participate in the licensing market and tend to have higher-value photographs, meaning that this factor is likely to lean in their favor. Also, as a practical matter, a professional photographer is more likely to bring a lawsuit than is an amateur (though amateurs have certainly done it).
6. Understand that crediting the photographer does not equal fair use. Although crediting the photographer is a good idea, attribution is not enough. “Fair Use” only applies when the four factors balance in favor of it.
7. Know what is in the “public domain,” and what isn’t. If a photograph is in the “public domain,” it may be freely copied and distributed. But the term “public domain” has a very specific meaning under copyright law. It does not mean that if a photograph is publicly available online or through social media, for example, it is free to use. It means that either that the copyright has expired or that the work lacks copyright protection in the first place. Generally speaking, copyrights have expired in works created before 1926. So feel free to use Civil War-era or turn-of-the-20^th-century photos at will. A work lacks copyright protection in the first place if it was created by the federal government. Note, though, that just because a photograph appears on a federal government website does not necessarily mean that the federal government created the photo — it may have licensed it from someone else. You need to check.  Also be aware that state governments may claim copyright protection in their works.
8. Respond promptly to take-down notices. Copyright damages are statutory. That means that the law provides a range of penalties for copyright infringement, from $200 per infringed work (for “innocent” infringements) up to $150,000 per work (for “willful” infringements). The failure to promptly respond to a reasonable and legitimate demand to take down an alleged infringement may lead a court to find your infringement “willful.” This is what happened in the case of Morel v. AFP — the court awarded the maximum damages, $1.2 million in total, in part because the defendants failed to take action when put on notice of the infringements.
9. Know the risks of embedding content. The law on this is in a state of flux, but, in many places, embedding content from, for example, Facebook or X counts as copyright infringement the same as if you had made a copy of the photograph and placed it on your newspaper’s own servers. You probably will not be able to get out of a copyright claim simply on the basis that you embedded the photo rather than literally copying it.
10. Look out for copyrighted materials within photographs. If the photograph that you want to use shows images of other copyrighted materials (g., other photographs, murals, drawings, poems, etc.), those materials may need to be separately cleared.

More information about MIC Ltd.’s media liability coverage is available at www.mic.bm/coverage.