Can I Copy this Image without Permission: A Picture of ‘Fair Use’

On the one year anniversary of Copley Library’s blog, we have a special guest blogger.  Christopher Marcum is the Reserves/Reference Assistant at Copley Library. He has put together a short dialogue describing copyright law and Fair Use of images in a real life situation.

It was a quiet day at the Reference Desk and I found myself pondering the nature of consequentialist theory as it applies to the ethics of librarianship. Just as I came to the conclusion that the greater good would definitely be served if the library invested in a giant television exclusively for watching college football, I was distracted by a surprisingly challenging copyright question:

“Hey library guy, do I need to ask permission to copy and paste this picture I found online into this personal document I have?” He added, “No one is ever going to read it, dude.” I replied carefully, “Hmmm…it seems rather harmless if no one is ever going to see it, but let’s think this through.”

Now, I was ready for this question because as the Reserves and Reference Assistant at Copley Library, I frequently conduct what is called a fair use analysis to determine if the copyrighted content we want to post to electronic reserves constitutes a Fair Use in accordance with the U.S. Copyright Act.

In short, the fair use doctrine allows for limited use of a work without permission from the rights holder.

Quoting a book or journal article in your own work is an example of a fair use.

A fair use analysis requires that you balance four subjective factors to determine if your proposed use of someone else’s copyrighted content is “fair” and thus, doesn’t require permission.

The four factors are:

1. The purpose and character of the use. I.E., what are you using it for and how are you using it?

  1. The nature of the copyrighted work. I.E., what kind of work is it?
  2. The amount and substantiality of the portion used in relation to the entire copyrighted work. I.E., how much of the work are you going to copy or otherwise use and how significant is the portion you are using to the overall meaning or point of the work?
  3. The effect of the use on the potential market for or value of the copyrighted work.

After explaining that a fair use analysis might answer his question, we decided to begin considering the four factors.

“Well,” I said, “The purpose of your use is personal, and you are not going to make any money from it. Also, the character of your use is private and personal, so it is looking like a fair use so far”.

Unfortunately, the second and third factors did not seem to favor his use without permission. I explained, “Because the nature of the copyrighted image you want to use is highly creative and because you are copying the entire image and not just a small part of it, I think factors 2 and 3 may oppose fair use in this case.”

With one factor remaining, it was looking like a tough call; we asked ourselves, would this use impact the potential market for the image? We decided that if no one ever saw the document, then no, it would not impact the market. “Dude, it’s a tie,” he said. I replied reluctantly, “Not exactly.”

I explained that in this case, he could probably make an argument either way. And, because no one factor or group of factors alone can conclusively determine if a given use is “fair,” he may have an argument for going ahead without permission.

“What would you do, library guy?” he asked.

“Well, you will have to decide for yourself in this case. But, when I am not sure if my use is fair, I always play it safe and go with unfair.”

“I never play it safe, dude. I think I am gonna use it.”

“Sure, it’s up to you, and you do have an argument for fair use in this case,”

“Cool,” he replied as he seemed to be re-considering his decision. “What if I decide this is not a fair use, library guy- what should I do?”

“Hey,” I exclaimed, excited by the genius of the suggestion I was about to utter, “Why don’t you insert a web link to the image into your document, that way you are not copying it!”

Whew, that should do it! And now, back to my daydream about giant library televisions for watchi…

“But what if the image is not legally posted, or what if the link stops working in 100 years? Besides, I want to have the image embedded with my text. The two are workin’ together, ya’ know what I mean, dude?”

Well-played, thoughtful patron, well-played.

At this point, I suggested that we take a closer look at the image to see if it might be under an open license that would authorize him to use it under the terms of the license without permission. I explained that many creators use open licenses such as a Creative Commons License to allow people to make use of their copyrighted work without permission.

“If the creator has put the image under an open license, and copying the image  to your document that no one will ever see adheres to the terms of that license, then you are home free…errr, home fair!

So, after taking a closer look at the image, we saw that it was not under an open license…DRAT!

“Well,” I said, “If you feel your proposed use of this image is not a fair use, then the only thing left to do now is ask the owner for permission.”

He replied, “Okay, how do I do that?”

I explained, “The first thing you have to do is determine who owns the image, then you just have to contact them ask for permission to use it.”

I then suggested that he start his search for the owner by doing a reverse-Google Image-search because reverse image searches are awesome and also because they often lead you to the person who created the image.

Once we found the name of the person who created the image, I explained that he should send the owner an email explaining who he was and how he wanted to use their image.

I reminded him to let the owner know the circumstances of his use such as how, when, and why, and for how long he planned to use it.

I also recommended that he promise to attribute the image to the owner and consider explaining why he felt this particular image was so important for his specific purpose.

“Cool. Thanks, library guy.”

“You are very welcome, my friend.”

As he walked away he turned and asked one final question: “What if the owner says no?”

I replied, “In that case, dude, you are gonna have to find a new image to paste to your document that no one is ever going to read.”

“Hmm, maybe I’ll just take my own picture,” he said.

The moral of the story:

Fair use is not free use and even when it seems clear that you can use someone else’s work without asking, it is important to consider it thoroughly.

Think about how you wish to use the work of others and if your proposed use is not “fair,” ask for permission.

Remember that it is okay to link to legally posted content on the web.

Look for content that is openly licensed for use without permission, and follow the terms of the license.

When all else fails, consider creating your own content.

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