I’m always pushing the idea of Shareable Squares, but what I haven’t talked about is the use of other people’s images. There are questions like: “Can we be sued for using a photo we find doing a Google search? What is okay to use and what is not okay to use? What constitutes the legal “Fair Use” of other people’s copyrighted material?”
Anybody who tells you that there is a simple definition of Fair Use is wrong. There are four main requirements that you have to fulfill in order for something to be deemed Fair Use, and the problem is that they are all open to debate. When copyright holders sue, sometimes judges rule one way and sometimes they rule the opposite way. Here are the four categories (with more than a little help from Wikipedia):
1) Will it impact copyright owners’ ability to make money off of their original work? How can we establish what impact we may or may not have on the copyright holder’s profits?
2) How much of the work is used? Sampling bits of music--like a James Brown yell--used to be legal but now it isn’t. Copying an entire movie from a DVD to watch on your iPad is illegal, but copying a whole movie on your DVR is fine. Clear?
3) Is it transformative or merely derivative? Does it change the work enough that it brings something new? There are numerous examples of people clearly transforming other people’s work where they lost in court, notably Shepard Fairey’s Obama poster.
4) Facts and ideas are separate from copyright; only their particular expression can be copyrighted, but there are situations where in the public interest that certain copyrighted information can be circulated. Who decides?
So what do we do?
Personally I try to get my hands on as much stuff as possible that is legit. All the art on CreaTTor.com is available for commercial use, and there is a lot of free stuff on Kozzi.com too. Most of the pictures you see me use are from CreaTTor, like this one.
I’m always on the lookout for free stock photos. I’ve also found some Creative Commons stuff on Flickr that is okay for certain kinds of use too; it might be only for non-commercial purposes. When I know I’m going to make use of something for a long time--like the graphic of the woman filmmaker above--I buy the rights from a stock photo company. (In this case it was iStockPhoto.)
But I have to admit that on many occasions I have used other people’s photos: I tell myself that I’m not making money off of them, I always change or add to them in some way, and would happily take them down in a second if somebody had a problem with them. Still I’ve always wished I had the money to buy stock photos or use my own all the time. I love stock photos.
But recently something came up that might hold the answer to this problem:
The massive success of Pinterest suggested that you can use any picture or video on the web as long as it’s linked back to its source--and this included sources that didn’t have the rights to the photos or videos themselves! What a concept! And nobody sued them for trillions of dollars. Pinterest may very well have resolved the issue of using images on the web. Don’t just take stuff--send people to the original. If we are very fastidious about this, maybe it will be okay. Look at this picture.
As you can see I put the name of the website on it and when you click it, it takes you there. Is this enough to protect me legally, even though I’m not curating it on Pinterest? I don’t know; I’m not a lawyer. But I think that the issue may have evolved from the near impossible task of deciding whether the use of a photo qualifies as Fair Use, to one of: “How is this use different from what is being done a quadrillion times on Pinterest?”
If that turns out to be the case, it would sure make everything a lot simpler for everybody.
Get that bit.ly link on the photos you borrow for Facebook use, everybody.