Copyright most frequently comes up when bloggers use photographs to illustrate their blog posts. How do you know if you have the right to use an image in your blog post?
Copyright is not the same as a trademark or patent. While trademarks and patents also restrict the usage of intellectual property, the rules governing them are not the same. You can learn more about the difference from the United States Patent and Trademark Office.
What is Copyright?
Copyright is a legal right that grants the creator of an original work the right to use, reproduce and distribute that work exclusively. It lasts for a limited time and is immediately granted to the creator when the work is “ fixed in a tangible medium of expression.” At the time of publication, the U.S. term of copyright of new works is the author’s life plus seventy years, though that’s regularly lengthened.
Since only the author can distribute the work they create, copyright allows creators to profit from their creation exclusively. This means that, if you write an amazing book or take a beautiful photograph, you (and your heirs) have the right to control its use exclusively.
As a blogger, copyright limits your ability to use material created by other people in your blog posts. It means that you can’t use photos or video in your post without permission from the content creator or from a third party (like stock photo companies) that the content creator has designated has the right to license the work. You don’t necessarily have to pay for this permission, but you do need to obtain it.
But why does copyright matter? It allows people who create art and media to make a living. If copyright didn’t exist, we would have far fewer writers, photographers, videographers and other creators in the world, and it would be a darker world for it. Respecting copyright is important for artistic marketplaces to function correctly, and bloggers are no exemption.
What About Fair Use?
If you know a little about copyright law, you might have heard of fair use. It’s a doctrine in U.S. copyright law that permits a some uses of copyrighted material without permission from the copyright holder. The idea is that certain uses are beneficial to society, and therefore the copyright holder should not have the ability to deny them.
Fair use is can be a little tricky to define. U.S. copyright law instead uses that the following factors to determine the validity of a fair use claim.
Character of Use: The purpose of the use is a crucial factor in determining the validity of a fair use defense, and it’s the factor most often discussed online. In broad terms, the work must be useful to society and legally distinct from the original.
Fair use covers uses that are useful to society as a whole. The Copyright Act of 1976 says such use must be for “nonprofit educational use,” either advancing knowledge or the arts. However, commercial use is not an immediate disqualification to a fair use defense. In Campbell v. Acuff-Rose Music, a landmark fair use case, the U.S. Supreme Court ruled that 2 Live Crew’s use of “Oh, Pretty Woman” was parody that qualified as fair use, even though it distributed commercially. So non-profit educational use, parody and criticism are typically considered reasonable justifications for a fair use claim.
Your work must also be distinct enough from the original to be called transformative. The work must not attempt to “supersede the use of the original work” (Folsom v. Marsh, 1841), but instead should comment on, criticize, or otherwise add to the work.
This concept of “transformation” has proved crucial to copyright law. In Campbell, the U.S. Supreme Court stated that “[t]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
Nature of the Copyrighted Work: If a copyrighted work is of special significance, courts may permit more fair use claims. For example, the Zapruder film, which depicts the assassination of President John F. Kennedy, was purchased from the creator by Time Inc. However, the court permitted stills from the video to be published in a history book for the sake of public interest (Time Inc v. Bernard Geis Associates, 1968).
Amount of Use: The smaller the use, the more likely the use is to be permitted. Using substantial portions of the work doesn’t prohibit a finding a fair use, however, and using a small portion of the work doesn’t guarantee a finding a fair use. If the “heart of the work” is used, fair use may be an invalid defense (Harper & Row v. Nation Enterprises, 1985).
Effect On Value: fair use should not have a negative effect on the value of the copyrighted work. It should not cause harm to the copyright holder in the form of lower sales or a decrease value of the work thanks to your distribution.
Because most blogs are not considered non-profit enterprises, bloggers can have a hard time justifying a fair use defense based on non-profit educational use. Remember, non-profit isn’t about not making any money: it’s about a legal status determined by the government.
Fair use becomes more applicable to bloggers when considering parody or criticism. For example, let’s imagine you’re writing a review of a new album on your blog. You’d be well within your rights to publish lyrics from the album as part of your critique. However, you could not upload all the songs to your blog for visitors to freely download.
If you’re concerned about whether a specific use qualifies as fair use, talk to an intellectual property lawyer in your jurisdiction.
What about the Public Domain?
Some works are considered to be in the public domain, which means their copyright basically doesn’t exist. There’s a number of ways a work can end up in the public domain, but the most popular route is age. The works of Shakespeare, for example, are in the public domain thanks to their age.
If a work is in the public domain, it can be used by anyone for any purpose without fear of infringement. This is one of the reasons you see so many cheap editions of “classic” works of literature: they’re old enough to have passed into the public domain. Works created by employees of the U.S. government are also considered in the public domain, meaning many of Ansel Adam’s photographs are free for use by anyone.
Determining whether a work is in the public domain isn’t always that easy, however. Just being really old isn’t the only factor. Cornell has an excellent table that can help you decide if a particular work is in the public domain.
Copyright is a little more complicated than it appears at first glance, but the basic ideas are fairly simple: if you didn’t make a work, you probably need permission to use it. It’s typically better to be safe than sorry, and you might get permission from the copyright owner without payment. If you get in trouble for copyright violations, you should contact a lawyer like Sherwin Arzani immediately.