Photography for Your Business
Copyrights and Social Media
I’m writing this because I see many photographers who may be willfully infringing upon other photographer’s copyrights by copying their works and publishing them in Facebook groups of hundreds or thousands to see in order to promote their projects. I am referring to type the post where the entire image has been copied as-is and minimal if any commentary is provided, but something like, “not my image, who who wants to collaborate". I'm in a midmarket where I'll see the same post reposted into several groups. Often these groups are closed so only members can them, yet these groups comprise a significant portion of the creative population in my state.
The question is, can the person posting this type of image prove it complies with Fair Use provisions of Federal Copyright Law? If not, the poster, (a.k.a., publisher of unlicensed material) may be subject to financial and possibly criminal penalties if found to be infringing on another's copyrights. Not knowing is not an excuse and not a defense.
I’ll speak to the legal side of this in a practical pragmatic way (which should no way be construed as legal advice. As photographers it is important for you to under copyright law and its limitations.) But before I get into all that it does make me wonder why a photographer who is suppose to pursuing creative endeavors results to this tactic of posting someone else’s images to get support for your own projects. It’s one thing to study other’s works and quite another to copy them and post for hundreds if not thousands to see.
Copyrights rights for a photographer begin automatically at the instance where they press the shutter and lasts for 70 years after the photographer’s death. I can’t think of too many rights that have a longer duration, so this a pretty big deal. Copyrights are automatic, the photographer does not have to apply or register their images for them to still be copyrighted but it they do that gives them a higher value should they have to defend them in court. You can expect high end commercial and commissioned editorial and top photographer's work to fall into this category and guess what, that's usually the type of work getting copied and posted in this manner.
So, photographers or others who insist that is okay to post unlicensed images in this manner insists they are doing under the limitation of Copyright law, known as "Fair Use". According to Stanford Law, (https://fairuse.stanford.edu/overview/fair-use/) Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. From the source itself (https://www.copyright.gov/title17/92chap1.html#107), “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.”
And a more detailed look the four factors in the Gov document can be found here: https://www.copyright.gov/fair-use/more-info.html.
While I contend and others I've consulted with generally agree, two of the four factors, 2 and 3 clearly don’t support Fair Use for an as-is image with no relevant commentary, However it is worth exploring Items one and items four more closely. In item one, some have claimed they do this for “nonprofit educational” purpose or for non commercial purposes. Checkout this source where it clarifies a variety of points but item 18 speaks directly to the Nonprofit Education aspects http://www.publiccounsel.org/tools/publications/files/fairuse.pdf so then we’re left with does noncommercial use apply. So the question becomes is the use non-commercial which is defined in the Creative Common’s language (https://wiki.creativecommons.org/wiki/NonCommercial_interpretation) as, “NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation” which is somewhat gray especially when the work will be used for improving a portfolio or for not paying for talent that might normally be necessary, does this provide competitive advantage by lowering their cost structure. For some photographers who are students of programs or only shoot as a hobby, it may be determined this use fits Fair Use, based on Non-Commercial nature in balance with the other factors . According to the Public Counsel (http://www.publiccounsel.org/tools/publications/files/fairuse.pdf) they have this to say about NonCommercial use , “This is an important – but not determinative – factor in the fair use analysis. A judge may take into account whether the alleged infringer made money from the use or if there a commercial motive. However, a judge must look at all of the other factors, and these may sufficiently weigh against a noncommercial, nonprofit, or educational use.” and from Copyright.gov in reference to a commercial or noncommercial determination, “courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.”
So next let’s look at the fourth factor which is the effect on the potential use of the copyrighted work and according to Copyright.gov (https://www.copyright.gov/fair-use/more-info.html) “Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.”
An important point, is that if someone appropriates an image without knowing the source, it is difficult to know the commercial uses of that image. Some photographers sell images for other artists to use as reference image. As artists and influencers are finding ways to monetize their posts on social media where “likes” and engagement for an artist can lead to higher monetary value. A copyright holder maybe using their images to increase their attractiveness so if the image is “delinked” and pasted into another platform they are deprived of the likes and engagement they would have been afforded. A single post can range from $10 to thousands of dollars. Ref (http://www.businessinsider.com/inkifi-website-tells-you-how-much-your-instagram-posts-are-worth-2017-11) and if it were wide spread use the value multiples. So in a facebook group with 10,000 members a copyright holder could be deprived commercial benefit from their work.
The copyright holder may be able to successfully argue that the could have offered that same sort of portrait service but because of this post where you will be doing it “non-commercially” or collaboratively it erodes the potential market for the copyright holder. While all situations are considered on a case by case basis, without a “transformative” quality that benefits the public, all the case law I have reviewed fails the test for Fair Use as it seems to be given the heaviest weight. Just because the poster claims it’s noncommercial work with no commercial impact to the copyright holder, has Factors 2 and 3 clearly on their side and strong arguments for factors one and four. I just can’t help but think a Judge would wonder why a photographer would find it so critical and in the publics interest to use an unlicensed image from another photographer, limiting their copyrights.
Given all of that, legal consideration that you have to determine whether your situation meets fair use, while keeping in mine the copyright holder does not have to prove they have the copyright, remember it's automatic., there are still at least two more hurdles worth considering.
Facebook requires you certify you have the rights to grant them when posting to Facebook under their terms of service. Fair Use is a narrow limitation to Copyright Law so even if you have a legitimate Fair Use right, you still don’t have all the rights necessary to grant to Facebook. Their terms services are one layer designed to ensure lawful use of their platform.
And, there should also be consideration given to the subjects in the photo? Unless waived, they may have certain rights to how their images are used. They may even have limitations to where these images may be published. Without gaining permission from the copyright holder it’s impossible to know these things. For instance when posting a picture with what appears to be a young model, what if she is an actual minor whose parents parents have not given you any permission? You are responsible for defending the work you are posting that is not yours and the source for which you obtained is not a valid defense, so you can’t blame the source from where you took it….kind of like selling stolen property. While your source may now get in trouble you are not exonerated either.
So all of this is a real headache. The good news is it can simply be avoided by erring towards respecting other’s copyright as you would like your’s respected.
Recommendation (Not Legal Advice):
If you absolutely have to use a particular image and can’t locate the copyright holder or the source, do something to it that is transformative in nature. Adding some critique, deconstructive analysis about a variety of the elements of the photograph would add public value consistent with Fair Use. To the degree to explain you are doing this for non commercial reasons and that you believe the post complies with Fair Use and why, it goes a long way and sets a good example. While this still may not be enough it can’t hurt and it shows your attempt to strengthen your Fair Use claim.
Here's a post that provides practical consideration, directed towards admins / moderators:
It is a safer and arguably a more respectful endeavor to gain permission from the copyright holder to use their works in your projects….you may learn something during the process! As easy as it is to digitally appropriate your works for your use, it has never been easier to connect with original creators from all over the world. If you can’t get permission, you can generally copy and paste a link to the source preferably or at least to where you found the work. Links are not copyrighted, but pay attention as there are some new case law speaking to these, too. I personally think this is showing more good faith to credit the copyright holder. Links to the source are best as the original creator get promotional / commercial value and again you may learn something from visiting the source.
If your read between the lines there is some irony with the entire situation. Photographers are suppose to be pursuing creative endeavors and if they cannot find a way to create a conceptual image to attract others to their own projects without using the advertisement value from another, I contend they are misleading others whom they seek to collaborate with and others they attract by virtue of the post. I also contend that if they can't produce a photograph on their own to use to promote their photography, they are effectively acknowledging the copyrighted image is providing them benefits that should be paid for. As a commercial photographer, I provide businesses photos for the promotion, just like this scenario, reiterating there is monetary value to the photograph used and is deprived from the copyright holder. I have also been paid by painter to produce reference folder among other social media influencers. There is a market for this sort of thing.
In all of my research I have found numerous examples that suggest when in doubt don't infringe on other's rights. If you are going to proceed assuming you meet the Fair Use criteria, do yourself a favor and conduct a self assessment (the Stanford references are the most straight forward) as it will be up to you to convince the judge that you are not infringing on copyrights, not the the other way around. Any good faith effort along the way can only help your case. A cavalier, lazy or ignorant approach can only be detrimental. The judge will look at the four factors but can include other intangibles, too.
If someone tells you your post meets the Fair Use criteria, you cannot trust that advice unless they are a judge ruling in your favor in court or in arbitration. The Law states that every Fair Use claim is treated on case by case basis and will be based on the Four Factor Framework that the judge will be use to make a Fair Use determination. If you take that advice you may find yourself in legal jeopardy.
Next, if someone advises you to find another way to make a post so as not to rely on a Fair Use determination or infringe on another's copyrights, they may be suggesting you put in a little extra effort but they will be helping you stay out of legal trouble and be more aware of the issues artists face in protecting their copyrights. So even if you feel your post of unlicensed work meets the majority of the four factors framework, you still could be sued by the copyright holder and be forced to prove that you have met the Fair Use criteria. If you win, you get to keep the post (though still have to pay for your legal costs). If you loose, you may be found to have infringed the copyrights and be subject to financial and even criminal penalties. The copyright holder regardless of outcome will retain their copyrights and will have no financial liabilities to you even if you win your case. Status Quo is the best possible outcome you can hope for in a Fair Use claim and it does not guarantee future determination in a similar situation as all cases are considered independently according to Federal Copyright Law.
There is an easier way! Why not just get permission or create your own reference image for your own projects? That way you never have legal liability, as all of the work you are posting is your own copyright (if your own)? Plus you’ll probably learn a heck of a lot more. You'll be giving something new to the world as well. Seems so easy just to do the right and respectful thing, right?
If you run across any case law pertaining to photographers using other's work for their inspiration, please let me know one way or another? I'm always willing to update my opinions when new information surfaces. As I have done considerable research, there may be a lot more that I just haven't seen. Thanks!!!
Some q&a: https://fairuse.stanford.edu/2003/07/06/how_i_learned_to_love_fair_use/
FAQ- NonProfit Education coverage: http://www.publiccounsel.org/tools/publications/files/fairuse.pdf
Facebook Position Copyright and Posting of photos:
https://www.facebook.com/help/337995452911154?helpref=faq_content FB Fair Use