Avoid Interfering with Fair Use Laws When Using Photos in Social Media
By Serban Enache
The starting point of the law is that photos, like any other content, are protected by copyright. In a nutshell, copyright means that you have the right to stop someone else from copying your work. So, if you’ve taken a photo, you own it, and no one can copy it without your permission. This is an automatic right, and you don’t need a contract or a registration to copyright something.
Fair Use, however, can be a tricky, gray area, and a fine line to walk. Generally, Fair Use allows the public to use copyrighted images without permission. So, if you copy another person’s original work, including photography, you must pass the “basic” Fair Use test.
Keep in mind that Fair Use allows you to use another person’s work for the purpose of education, commentary, reporting or criticism. This means that you can use copyrighted material without a license only for certain purposes. For example, you can’t simply grab a copyrighted photo and then use it on a social media site just because you think it’s eye-catching. However, it probably would be considered Fair Use if you included the photo in a post that commented on and analyzed the photographer’s work.
So, if you’re using an image to comment on (or criticize) the topic in the photo, it’s fair to post it to a social media site. If you’re using the photo for financial gain, or to grow your business’ engagement or likes, however, it’s not okay.
Ultimately, the best way to use an online photo, especially if you don’t already have a photo you have taken, is to simply reach out to the photographer and ask permission. At the end of the day, it’s about basic respect in the marketplace. Be sure to use the same courtesy and respect for material found on the web that you would want someone to use with you. If it belongs to someone else, always ask permission first.
There is no exact equation of what constitutes Fair Use, but here are some basic guidelines that, when considered together, can help when making the decision:
- Purpose and character of the use. (commercial vs. nonprofit/educational). Is the image an original work? Is your website personal, or for-profit?
- Nature of the copyrighted work. Is the original work based on fact, opinion or original thought? The closer the original work is to fact, the more likely that Fair Use applies.
- Amount of the portion used in relation to entire original work. Did you copy most of the work? The more you use, the more likely you are in the wrong. The best rule of thumb here, is if you are unsure, just ask the copyright holder for permission.
- Effect on the potential market/value of the copyrighted work. Are you producing a competing product by copying an original work? Are you using an image that you would normally have to pay for?
Serban Enache is the CEO and co-owner of Dreamstime.com, LLC. With over 15 years of experience in design and new media, Serban has proven to be a skilled executive, successfully blending creative and executive abilities. Serban handles the business development strategy for Dreamstime, and is deeply involved in the everyday operations of the website community. He is a skilled visionary who believes in disrupting the business norms to explore new options.