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This article provides general information regarding the use on Wikipedia and similar sites of photographs and other content that may be subject to copyright law protections. More specifically, it is intended to provide a general background from the perspective of the Wikimedia Foundation on the topic of “fair use” of materials that are subject to copyright protection. This article is for general informational purposes only, and does not constitute legal advice. It is the Wikimedia Foundation's general view of the matter. We recommend consulting an IP attorney if you have questions about whether any specific use would be “fair.”
Copyright law protects original, creative works of authorship, such as paintings, drawings, writing, architecture, films, software, photography, and music. Copyright protection is secured automatically when the author’s work is fixed in a tangible medium of expression for the first time.
The 1976 Copyright Act gives the owner of a copyright the exclusive right to do a number of things, including make copies of the work, prepare derivative works based upon the work, distribute copies or transfer ownership, and perform and display the work publicly. The owner’s exclusive protection generally lasts for the life of the author plus 70 years, whereafter the work then falls into the public domain and is available for use without the author’s permission. By affording a copyright owner this broad protection, Congress hoped to “motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.” Harper & Row, Pubs., Inc. v. Nation Enters., 471 U.S. 539, 546 (1985).
Because no notice of copyright protection is required (such as the symbol © or the word “Copyright”), it can often be difficult to recognize whether a work is protected by copyright. In the case of material posted on the internet, it can be especially confusing to recognize whether posted creative material (blog postings, photographs, videos, etc.) is protected by copyright. But because the material is stored on an internet server and therefore is fixed in a tangible medium, it is potentially protected by copyright law. A good rule of thumb is to assume that every creative work is protected by copyright, and that the author’s permission is necessary to use or make copies of the work (with one important exception discussed below).
For more information on copyright law and how it works, please see Stanford’s primer on copyright at http://fairuse.stanford.edu/overview/faqs/copyright-protection/.
Fair Use Exception
“Fair use,” found in Section 107 of the 1976 Copyright Act, is an exception to the copyright holder’s right to prevent copying and use of a creative work. The Fair Use doctrine recognizes that some use of copyrighted materials without the copyright owner’s permission is necessary to fulfill the very creativity that copyright law is designed to foster. Stewart v. Abend, 495 U.S. 207, 236 (1990). Certain circumstances considered to be “fair use” include using a copyrighted work for the purpose of criticism, comment, news reporting, teaching, scholarship, and research. For example, in certain circumstances, a writer may be allowed to quote from other writers in her article, and a reporter may be allowed to comment on someone’s photograph in his recital of a newsworthy event.
To determine whether use of a copyright protected work qualifies for the fair use exception, courts look at:
- The purpose and character of the use;
- The nature of the copyrighted work;
- The substantiality of the portion of the copyrighted work used; and
- The effect on the market value of the copyrighted work. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
The central purpose of this inquiry is to examine whether the copied work merely supplants the original (which would not be fair use), or whether the copied work is transformative in nature. A work is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message . . . .”
To go into a bit more detail, we can look at each factor. Factor (1) asks two questions: whether the use is commercial or non-commercial and whether the use is transformative. Transformative, in this case, asks whether the use takes the original material and adds some kind of new expression or meaning that’s different from the original work. Factor (2) looks at whether the work is more factual as opposed to more creative (facts are not protected so works that are mostly factual have thinner protection) and also at whether the work is published or unpublished (unpublished works get more protection). Factor (3) looks at how much of the original work was taken, how much the copied work makes up for the new work (for example, copying 26 seconds of a movie may not sound like much, but if your new video is 26 seconds long and is 100% copying, it’s likely not fair use), and how important the part taken was to the original work (the example court case is when Gerald Ford wrote his book, spoiling the part about why he pardoned Nixon in a book review was not okay). Finally, factor (4) looks at what effect the use would have on the market for the original work, both in terms of what effect it actually has and what effect it could potentially have (for example, even if a specific book has not been licensed for a movie, the fact that books are regularly licensed for movies means that making a movie out a book without permission is a problem).
Determining whether a particular use is “fair” is not an easy task, and two courts reviewing the same use may come to different conclusions as to whether the use is fair. There are, however, a few general themes that can be observed from past cases. Usually, a use of another’s work is fair if it uses a very small portion of text for commentary, scholarship, or similar purposes. See Wright v. Warner Books, Inc., 953 F.2d 731, (2d Cir. 1991) (holding that copying short insignificant portions of Wright’s unpublished letters for informational purposes was fair). Also, if a work was appropriated for competitive purposes (i.e., affecting sales of the original work) or commercial or advertising purposes (as opposed to non-profit, educational, or informational purposes), the use of the work is less likely to be fair. Harper & Row, 471 U.S. at 562. Generally, if less material is taken from a work (when compared to the amount and importance of the material in the entire work), the use is more likely to be fair. See Monster Comms. v. Turner Broadcasting, 935 F. Supp. 490, 495 (S.D.N.Y. 1996) (finding that a taking a small portion of the film for informational purposes was fair). Obviously, the “fair use” analysis is highly fact dependent, so it is helpful to look at certain examples from the cases included below when considering whether use of a work will be “fair.”
For additional discussion of the fair use factors, please see Stanford’s primer on “fair use” at http://fairuse.stanford.edu/overview/fair-use/four-factors/.
Some Application of Fair Use from Case Law
In Elsmere Music v. N.B.C., 482 F.Supp. 741 (S.D.N.Y. 1980), the authors of the song “I Love New York” sued Saturday Night Live for their parody song “I Love Sodom,” which used the four-note chorus from “I Love New York” but replaced the city name. The song was part of a sketch mocking New York City’s attempt to clean up its image. The court found that the song was a fair use. Important to the court’s argument were: (1) the clear parody present in the song and sketch; (2) the fact that the SNL song did not impact the commercial value of “I Love New York”; and (3) the fact that the parody did not take more of the work than was necessary for an effective parody.
In Columbia Pictures Indus. v. Miramax Films Corp. 11 F.Supp.2d 1179 (C.D.C.A. 1998), Miramax used a movie poster to advertise a Michael Moore documentary that was intended to look like the one used by the film Men in Black. The Men in Black poster featured the characters with the tagline “Protecting the Earth from the Scum of the Universe” and the other featured Michael Moore in similar clothing with the tagline “Protecting the Earth from the Scum of Corporate America.” The court found that the Moore poster constituted copyright infringement and was not fair use. In rejecting the fair use argument, the court relied on the following factors:
- Commercial advertisements as parody are entitled to less indulgence than other forms of parody (such as education or purely entertainment purposes);
- The poster did not create a “transformative work” commenting on the original – it simply used the ad to poke fun at a different target; and
- The ad was simply a vehicle to entice people to see the Moore movie in the same way that Columbia used its ad to entice people to see Men in Black.
The court also found that the nature of the original work as creative expression (as opposed to informational) weighed against fair use.
In contrast, the court in another movie poster parody case, Liebovitz v. Paramount Pictures, Corp.,137 F.3d 109 (2d Cir. 1998), did find fair use. There, Liebovitz claimed that Paramount infringed her photo of nude, pregnant Demi Moore, which was originally featured on the cover of Vanity Fair magazine. To advertise its movie, The Naked Gun, Paramount featured Leslie Nielson‘s face over the image of a nude pregnant woman in the exact pose of Demi Moore. The main difference in the court’s analysis, which led to the finding of fair use, was that the court was convinced by Paramount’s argument that this ad actually commented on the original work – ridiculing the work itself. The court did, however, express some reluctance to grant protection because the poster was used as a commercial advertisement (stating that its use as an ad “lessens the indulgence” to which the parodic work is entitled).
In SOFA Ent., Inc. v. Dodger Prods., Inc., 709 F.3d 1273 (9th Cir. 2013), SOFA’s founder attended a performance of Jersey Boys and realized that a seven second clip of Ed Sullivan’s introduction of the band Four Seasons on The Ed Sullivan Show appeared in the play. SOFA sued Dodger (the producer of Jersey Boys) for copyright infringement on the grounds that Dodger was using its clip without SOFA’s permission or a license. Dodger answered by asserting that its use of the clip constituted fair use. The court agreed. It examined the four factors and found that the use was transformative (it was used not for its entertainment value but for biographical purposes to mark an important moment in the band’s career), it merely conveyed factual information, it only used a short seven second clip, and the secondary use (the play Jersey Boys) was not a substitute for the original (The Ed Sullivan Show) and thus created no threat to SOFA’s business model.
In Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d. 622 (2003), a group of companies holding various proprietary rights relating to Elvis Presley sued the defendant producer of a 16-hour documentary about Presley’s life which contained excerpts from television appearances, photographs, and music. The Ninth Circuit found that while the defendant’s work was a biography, it was clearly commercial in nature, as it sought to profit directly from the copyrights it used without a license. In fact, one of the most prominent sales points on the box of the biography was that “every Film and Television Appearance is represented.” The court also noted that the producers’ use of plaintiffs’ copyrights was not consistently transformative. While the use of many of the television clips was transformative because the clips played for only seconds and were used for reference purposes, the court noted that some clips were played without much interruption and very little voice-over. The court held that “[t]he purpose of showing these clips likely goes beyond merely making a reference for a biography, but instead serves the same intrinsic entertainment value that is protected by Plaintiff’s copyrights.”
Political Criticism and Comment
In Baraban v. Time Warner, 54 USPQ2d 1759 (S.D.N.Y. 2000), the court analyzed whether a political commentary of a photograph constituted fair use. The photographer plaintiff had taken a picture for a nuclear power industry lobbying group of a woman milking her cow one mile from a nuclear reactor. The photograph was meant to portray the safe relationship between cows and the nuclear plant. A critic of the nuclear energy industry wrote a book attacking the industry and reproduced the plaintiff’s photograph in a smaller, black-and-white format with text criticizing it. Finding fair use, the court explained that:
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Photographs and Fair Use
Because photographs don’t make sense to excerpt in the same way as a large written work, they require some special considerations. Photographs are still subject to the same copyright protections, and fair use exceptions, as other forms of content. Courts faced with a fair use claim for a photograph apply the four-factor test discussed above. Because of the intensely factual nature of the test, it is often difficult to predict how any court will rule on a fair use defense, and, as discussed above, two courts reviewing the same facts may come to two different conclusions. However, there are certain situations where courts have held use to be “fair,” such as when photographs are used for political criticism or comment, are newsworthy and not used for their original intended purpose, or are transformed into a new form or purpose that differs significantly from the original. Below are some cases where courts have found that someone has fairly used someone else’s photograph.
Political Criticism and Comment
As discussed above, Baraban v. Time Warner, which concerned the photograph of a cow near a nuclear power plant, provides a great example of a photograph as fair use. The critical part of the court’s discussion is that the photo was newsworthy and commented on an issue of public importance. On top of that, the photograph was an “integral” part of the commentary.
In Nunez v. Caribbean Intern. News Corp., 235 F.3d 18 (5th Cir. 2000), a professional photographer took several photographs of the winner of Miss Puerto Rico Universe for use in his modeling portfolio. Some controversy arose over whether the photos were appropriate for a Miss Puerto Rico Universe because the model was naked or nearly naked in at least one of the photos. A newspaper then obtained several of the photographs through various means, and over the next week, without the photographer’s permission, included three of his photographs, along with several articles about the controversy. The photographer claimed that the reprint of his photographs in the newspaper without his permission violated the Copyright Act of 1976. Applying the “fair use” factors, the court focused on the “newsworthy” nature of the photographs, the difficulty of presenting the story without the photographs, and the minimal effect on the photographer’s photography business. Specifically:
On purpose and character of the use, the court found that the newspaper both sought to “inform” and “gain commercially,” and that the two purposes offset each other in the fair use analysis.
On the nature of the copyrighted work, the court stated that the “reproduction . . . does not threaten Núñez’s right of first publication” because “they were hardly confidential or secret” because the photographer had “commissioned the pictures for the very purpose of semi-public dissemination.”
On the amount or substantiality of the use, the court found that the newspaper “admittedly copied the entire picture; however, to copy any less than that would have made the picture useless to the story.”
On the effect on the market, the court concluded that “the market for professional photographs of models publishable only due to the controversy of the photograph itself is small or nonexistent.”
As a result, the court held that “where the photograph itself is particularly newsworthy, the newspaper acquired it in good faith, and the photograph had already been disseminated, a fair use exists under 17 U.S.C. § 107.”
In Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), the holder of copyrights on seven posters of the famous music group “The Grateful Dead” sued the publishers of biographical book, claiming that reproductions of the posters contained in the book violated its copyrights. The court examined the four fair use factors and found that the use of each image was transformatively different from the original expressive purpose. The publishers used the images as historical artifacts, not artistic expression, to document the actual occurrence of Grateful Dead concert events. The court also found it important that the images were displayed in reduced size and scattered among many other images and text, and that the use of the images did not impact the copyright holder’s original purpose for the poster images, which was to promote concerts. The court concluded that the book publishers’ use of the copyrighted images in its book was fair use.
Size and Quality of Reproduction
In Kelly v. Arriba-Soft, 336 F.3d. 811 (9th Cir. 2003), the Ninth Circuit considered whether a search engine’s practice of creating small reproductions (“thumbnails”) of images and placing them on its own website (known as “inlining”) was fair use. Of importance was that the thumbnails were much smaller and of much poorer quality than the original photos and served to help the public access the images by indexing them. Accordingly, the reproduction of the photos did not did not undermine the potential market for the sale or licensing of those images. Similarly, the Ninth Circuit in Perfect 10, Inc. v. Amazon. com, Inc., 508 F. 3d 1146 (9th Cir. 2007) followed Kelly and found that a Google search engine had fairly reproduced thumbnails of a subscription-only website (featuring nude models).
For more cases that discuss whether the use of a photograph or other content is “fair” in a particular context, please see http://fairuse.stanford.edu/overview/fair-use/cases/.
Under certain circumstances, users can reprint or upload photographs without a copyright holder’s express permission. Even if you believe the use to be fair, the copyright holder may disagree, and it will then be up to a court to decide. In making that determination, the court will likely evaluate each of the four fair use factors. In making its determination, one of the most important factors the court may consider is whether the use is “transformative;” that is, whether it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message . . . .” Campbell, 510 U.S. at 578-79. The following are some practical considerations that may influence a court's analysis for deciding whether an uploaded photo is fair:
What was the original purpose of the photographer in taking the photograph, and is the photograph now being used for a different purpose?
Wie viel von dem Foto wird verwendet?
Is the photograph now being used for profit or not?
How much of the photograph is being used?
Is the entire photograph being used, or just a portion?
If a portion is being used, is it an extremely important part of a larger work (e.g, the top 5 rankings of a “best 100 X” list)?
If the photograph is presented in the context of an article, is it cropped to omit portions that are irrelevant to the article?
Is the photograph being reproduced in its original file size and resolution, or in some reduced size?
Is there other material being used with the photograph, such as handwritten notes, historical or educational text, etc., that puts the photograph in a new or different context?
What is the likely effect on the original market for the original photograph?