An Overview of Copyright Policy And Fair Image Use

I remember learning about plagiarism in elementary school. The idea kind of follows you throughout your educational career, with teachers belaboring the point of how copying another’s work will have huge consequences. How to properly cite someone’s work is very important (and different professors have different style preferences). Now, plagiarism is different than copyright but it got me thinking, what are the legal ramifications for when someone rips off an entire blog post or article? Hopefully you never have to find out but let’s dive into just what a copyright is and how something like fair use plays into copyright laws.

Copyright Basics: What is a copyright?

The dictionary definition:

Intellectual property protection – a bit of a tongue twister but that’s what a copyright really is. United States law states that copyright protection is available for original works that are in tangible form, such as literary works, live performance, film, and paintings. Said work can be unpublished or published but copyright law does not cover concepts, ideas, or techniques associated with a piece of work. Your work must be written (on your website, blog, online course, or even on paper) in order to be eligible for copyright protection.

But how do you protect your online content???

Guess what, you don’t actually have to register your work with the U.S. Copyright Office for copyright status. I know, all you bloggers had a brief moment of panic, thinking, “Oh crap, can people just claim my online articles as their own without legal ramifications?” No need to fret, copyright is automatically granted upon creation of your original content. As of March 1989, works aren’t required to display a copyright notice. But you are allowed to display the copyright symbol (©) alongside your work as soon as it’s made.

However, even though copyright protection is technically granted upon creation, you can only take legal action against someone who steals your work if that work is registered. So even though your work is protected under copyright laws, you won’t legally be able to do anything if someone steals your work unless you have also filed with the government.

No matter whether your work is currently copyrighted, I always say it’s better to be safe than sorry: use the symbol. If someone does steal your work, there is no way they can claim they didn’t know it was someone else’s. (Look at the footer of this page and you’ll see it says “Copyright © 2006-2016 Dowitcher Designs. All rights reserved.”)

Exceptions to the Rules

The general rule is that you cannot use a copyrighted work without the owner’s permission. But of course, there are exceptions to the rights an owner has over his/her copyrighted content. I’m talking about the Fair Use Doctrine. Fair use allows the use of copyrighted materials without the explicit permission of the author and is the legal construct that allows millions of people around the world to see and share images online every day.

Fair ≠ free

Fair use is a balance between the public’s rights to use and the rights of the owner. It doesn’t matter what we think is fair but rather on promoting the interests of the public (which can suck for the copyright owner). To determine if something is fair, lawyers look at four factors: purpose and character, nature of work, amount, and market effect. Read all about these on Purdue’s website.

What about stock photo services? Such services require a user to pay a license and therefore are not subject to fair use. Public domain images? Also not subject to fair use because they’re not subject to copyright. 🙂

Before using a copyrighted image, be sure you understand the following:

• Fair use isn’t about attribution. Linking back to the original piece of work is definitely a best practice but it doesn’t mean you’ll win a fair use court trial. If covered by fair use, you’ll be able to infringe on someone’s copyright and don’t have to provide any sort of citation.
• If the sole purpose of using a copyrighted image is to make a post more visually pleasing, go a different route (either get permission or buy a stock image). Fair use images are mainly used for the purpose of teaching, research, and reporting.
• If you’re simply using a thumbnail or a portion of an image, you’ll likely be able to argue fair use. Just posting the original image in its entirety raises more questions.
• Finally, you’ve got to be willing to take the risk of having your site shut down or being sued.

My advice? When in doubt, assume an image is copyrighted and don’t use it without permission (which often is granted quite gladly by the owner).

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Understanding what a copyright is and isn’t is a good first step. If you have questions about copyright protection or need help registering your copyright, contact an intellectual property lawyer or visit www.copyright.gov.

For a bit more information about other types of legal protection, check out our Small Business Guide to Copyright, Trademark, and Patent.