"Fair Use" of Images, Music, Art and Intellectual Property on Your Website or Blog


Ever wonder if that image you use on your website is OK without permission? Maybe whether you can play a copyrighted song or use copyrighted art in a presentation you plan to give. The legal answer can commonly come down to whether the use of a copyright protected work is a “fair use” or not.
Although U.S. law used to require notice formalities in order for a work to be entitled to copyright protection (like using the © symbol upon first publication), that is largely no longer necessary. The result is that creative works automatically get copyright protection the moment they are recorded. This means that unless it is really old, almost any song, article, photograph or other creative work you come across online is covered by copyright.
The U.S. Copyright Act provides that copyright get what is known as a bundle of rights relating to their works. This includes the right to make copies of those works and to display those works. Thus, unless you have permission (such as when an image is made available under some type of license or you have the owner’s consent), copying and pasting an image you find on Google into your website will almost certainly infringe someone’s rights. The same is true for materials you might find posted to Instagram or Twitter.

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Finding an infringement, however, is not the end of the analysis. Copyright infringement can be excused in the right circumstance under the fair use doctrine. This doctrine recognizes that there are circumstances where the law shouldn’t require permission to make a use, such as in a parody, a true educational setting or for the purpose of critical commentary, among other such scenarios. If the situation is right and a fair use is present, the infringement is “excused” under the affirmative defense of fair use.
The Copyright Act lays out a four-part balancing test to determine if a use is fair or not. No one factor controls – instead, a court is supposed to balance the factors against each other and determine whether, on the whole, allowing the use without requiring a license advances or frustrates the purpose of granting copyright – promoting others to engage in artistic endeavors.
The fair use factors are:

  • what is the purpose of the use
  • what is the nature of the copyrighted work being used
  • how much of the copyrighted work is used
  • what is the impact of the use on the market for the copyrighted work (does it replace the market or not).

A shorthand for this analysis is whether the use is “transformative”, meaning does the use recast or reuse the original material in a way that changes its original purpose, or does it use the original material for basically the same reason that the original material was released in the first place. If it replaces the original purpose, it is probably not a fair use.

As one might imagine, this is a highly case-specific analysis, and can be one of the most difficult areas of the law to predict. That’s why, when using material you didn’t create, it is always best to consult a qualified intellectual property lawyer for advice and guidance.
Also consider that sometimes it might just be easier to get permission from the owner of the image instead of having to do a fair use analysis.
DISCLAIMER: This summary is provided for informational purposes only and is not legal advice. Always consult with your own legal counsel prior to making legal decisions.