1. Examples. Ok!

Lets say I'm a photographer, and I either am having an exhibition at a gallery, or I just put out a book with a collection of pictures. One of your websites decides to post a review, or even a scathing critique of my work - in such a case you may use examples as you are discussing the work. "The right set forth in Section 107 of the United States Copyright Act, to use copyrighted materials for certain purposes, such as criticism, comment, news reporting, teaching, scholarship, and research."

Lets say you found one of the images in above book to suit a post about something else enterily, and you use it. Wrong. That would not fly.

Now say instead that I have a photo on my blog/website that I took showing some strange car I spotted at a car show the other day. Your autoblog people see it and think it's a newsworthy picture - all they have to do is ask for my permission to post that image and we'll all be fine. If they don't they have infringed my copyright of my image, and it will not please me, especially not since they'll be posting it on a blog where it reads "All contents copyright © 2004, Weblogs, Inc." at the bottom, actually changing my copyright without consulting me.

my 2 cents anyway.

Posted at 6:24AM on Dec 19th 2005 by Dabitch

2. Oh, I think it's worth noting that the fair use clause I cited in the above comment, naturally, only applies to material produced by US citizens. It's the world wide web here and countries have different laws. Any shot I take in Denmark is mine from the second the shutter closes, and the accidental postings of Danish copyrighted photos on websites may be billed to you even if you remove them from your website. Worth keeping in mind.

Posted at 6:24AM on Dec 19th 2005 by Dabitch

3. Lets equate a blog to a magazine... that is essentially what a blog is, just more dynamic and online. By your definition, since the use is not commercial you can use the image. Well, magazines have to license images from the photographers in order to run them with an editorial article. Why shouldn't blogs be put up to the same standard? The mentality is "oh, its just a blog so its not really anything big." It doesn't matter, if you use my image you need to pay for it if I don't want to let you use it for free. And don't try to tell me you aren't a commercial entity. The content of your blog, including the images, is what brings people to your site. As your blog get more popular you start charging users and/or attract advertisers and begin to make money. You are then making money based on your content which includes my images. Why should you profit from my content? BTW, "we aren't making money" isn't an excuse either because I'm sure if you could be you would be. It is up to me, not you, to determine if you can use my image for free.

Posted at 6:24AM on Dec 19th 2005 by Jeff Singer

4. Interesting commentary comparing magazines and blogs. News magazines are generally protected under freedom of the press rulings. COVERS are considered by many Federal District Courts to be commercial.

In all fairness, you should always ask permission. If it is not granted, don't use it. Real Simple. You're skating on very thin ice if you think that you can continue using images in your blog without permission. All it takes is one suit - with two of the three of the major photographic trade organizations backing the suit and your blog is history along with a substantial civil penalty.

Just ask permission. If they say no - don't do it.

Posted at 6:24AM on Dec 19th 2005 by Cameron Davidson

5. If we are not making money, as above's post states then I believe it is ok, since if we were making money as the above writer suggests, I am sure we would have no problem sharing that money with the authors of photos we use in our blogs. Free/Non-Profit should ba fair use.

Posted at 6:24AM on Dec 19th 2005 by Dmitriy K

6. A couple of things:

To the comment about "not making money": To use this site for example (which has been referred to as a "personal" site), I see a whole lot of advertisements showing up on it. Now, you might not be making money from the picture itself (not defensible in court, BTW), but you _are_ making money on the site.

I would be very interested in hearing the legal definition of "Commercial Fair Use" as my understanding, as explained to me by a couple of different IP attorneys, is that is a contradiction in terms.

Posted at 6:24AM on Dec 19th 2005 by Tom

7. Directly to Dmitriy K's comment above: Don't confuse Non-Profit with free. The Sierra Club is a national Non-profit organization and I can assure you that they properly license what they use. NP does not guaranty any organization a free ride when it comes to Copyright.

Posted at 6:24AM on Dec 19th 2005 by Tom

8. Your (or anyone's) usage of somebodyelse's photographs in the blog is under no circumstances "fair use". Better read the definition of the "fair use" as copyright office sees it.
Non-commercial usage doesn't equal "fair use".
Bloggers violate the copyright of the pictures they use.

Posted at 6:24AM on Dec 19th 2005 by Jack Kucy

9. I suppose it would be ok to copy all the information from this blog, and just post it as my own blog. Hmmm, I don't think that would be appreciated.
Money is a non issue. The images are protected by copyright and can only be used with the creator's permission, regardless of any money changing hands.
Copyright is copyright. You need a release, plain and simple.

Posted at 6:24AM on Dec 19th 2005 by mark

10. > You need a release, plain and simple.

That is not true. Go check the basics of fair use here: http://en.wikipedia.org/wiki/Fair_use

There is fair use without approval...

The discussion here proves the point that folks don't think that fair use even exists!!!

In terms of blogs being magazines, I think some folks would argue they are more like message boards. I think they are somewhere between the two.

I think the bottom line is that there is some level of fair use provided the four test outlined in the law:

1.1 Purpose and character
1.2 Nature of the copied work
1.3 Amount and substantiality
1.4 Effect upon work's value

These test would allow some use on a blog, but clearly those uses would be with limits.

The most important test is #4: the effect upon the works value.

best jason

Posted at 6:24AM on Dec 19th 2005 by Jason

11. I'm a guest at your house. You return home and find your car missing; you panic. I return with it a few days later. Did I have the right to pick up your keys & drive your car without your permission since I was a guest?

Posted at 6:24AM on Dec 19th 2005 by Morocco Flowers

12. I'll point to http://www.llrx.com/features/bloggersbeware.htm, via http://www.theshiftedlibrarian.com/archives/2004/12/highly_recommen.html as my two cents. I still stick to the fact that if you are writing a story about cars, and you take a photo from Car & Driver's website, for instance, irrelevant of whatever resolution you save it and post it as, and use it to preface or doll up your story, it's not fair use, unless you have permission from the photographer or rightsholder. If you take a picture of a countryside, and critique the photo, you are probably in a good place - but the rightshold could probably still try and argue against it, especially if they sell the work that you have posted on your site.

It's always going to be arguable, and every situation could potentially be different.

Fair use does exist, but it's not as wide ranging as many people believe it is. It's also MUCH more easily applied to written work. The "four" tests come off much cleaner on written work. Me cropping someone else's photo isn't something I'd really want to see, and the quid pro quo argument about "sending traffic" to someone is totally bogus, frankly. Sure, I get traffic, but at what cost?

Posted at 6:24AM on Dec 19th 2005 by Tom

13. The thing here, especially on a business that runs blogs, is that by allowing these sites to post pictures without paying for them, then the magazines and newspapers that would normally have to do the same basically can just follow the same standards of "fair use," and it's the same thing. As was said before, if they're not making a profit, they could just claim that they're "not making money," for instance, and go from there. But they can't - and won't, do this. At the very least, they ask permission - if they don't, they get lambasted - by bloggers, and the owner of the original work.

Posted at 6:24AM on Dec 19th 2005 by Tom

14. I'm both a writer, and a photographer. Your argument regarding fair use is an interesting one, but it seems that your stance in an unpopular one, at least in the company of photographers. :)

Here's how I see it. Weblogs are viral enteties, even more so that traditional websites. Let me say right now, that what we now call traditional websites will soon be extinct. All websites, commercial or no, will use the same basic principles and engines of weblogs, and for good reason: they get right to the point, and are easy to update, and best of all, encourage community involvment.

Every enterprise, be it commercial or purely artistic, benefits in obvious ways from this combination of features. So, the argument that weblogs are somehow of a less threatening stature is at best, an increasingly weak one.

But back to the viral comment. The infectous nature of the web, when emphasized by an ever larger community of active bloggers is exciting, and it is easy to see why photos belong in blogs, rather than just text. I disagree that photogs do not stand to benefit form increased traffic generated from non-permissioned use of their work. It may be more difficult to quantify, but the exposure is valuable.

However, this does not mean that permission is not required for a photog's use. Why? Because a photo makes its impact all at once, and instantaneously.

Let me explain. Bloggers (increasingly commercial web magazine writers) cross reference one another's work all the time. They might create a one sentence description and use that as the link. Or, they might explain the gist of another blogger's post, and place a link to the full article thereafter. The point is, that nowhere in bloggerdom is it acceptable for one author to steal the content of another. By giving a teaser and a link, one blogger is actually enticing his/her audience to visit another author's site. This is beneficial to both authors: one recieves a growing audience, and the other, spreads an image of a trustworthy source of quality information.

This is not at all the case with photos. There can be no previewing, or teasers of photos, at least in the practical sense. Sure, an image may be cropped, but that simply means that the most essential message of the photo has been isolated. How often is a photo cropped in such a way as to degrade its theme? I dare say rarely.

So, the photo is used to draw the viewer into the article. The impact of the photo is made upon the viewer, and there is no reason for the viewer to care who created the photo until after the article is read. You see? The photo has become a vehicle for your (author of the website) articles and the image of your website, rather than the viral effect of introducing new readers to other authors as in the news gathering example above.

Unless the point of your article is to sing the praises of that photographer, and to send readers to that photographer's website, then you are using his work to benefit your own, with little or no benefit to send back his/her way.

This is why photographers ought to be paid for their work, or be in absolute control over how their images may be used. Be it information for sale, information for free, or products or services, their images are _selling_ an image to the viwer, and that has the same value no matter what context you choose to place it under.

Posted at 6:24AM on Dec 19th 2005 by Tyler Young

15. This is my first post. I came to know of this site through the forum of www.homemaster.net. I think photographers have an exclusive rights over their photographs. No one can use them without prior information or approval.

Posted at 6:24AM on Dec 19th 2005 by harinder

16. We can argue until we are blue in the face about what fair use "ought" to be, that blogs are good things, that using photos on blogs can help the photographer, etc., but the bottom line is that this area is controlled by federal law and the law, not popular opinion, will determine how things shake out.

If you want to have an intelligent discussion of the topic, you really should be delving into the copyright laws and the court cases that have interpreted it.

If you want to change the law, talk to your congressman about entering legislation into Congress to change the laws.

If you (a blogger) gets taken to court of violating copyright law, the Judge won't have the powers to change the laws simply because your think your use should be fair or characterized as non-commercial. And, your lawyer won't make a fool of himself by asking the judge to write new law.

Do you know that if your site or blog violates copyright law your web host can shut your site down? As a photographer I've caught folks using my work without permission. My first step is to ask them nicely to take it down. If they don't, my next stop is their web host. Once the web host is put on notice that one of his sites has offending material on it, he becomes equally liable if he lets the site remain online. So, it's very easy at that point to get the site shut down.

Posted at 6:24AM on Dec 19th 2005 by Scout

17. So if I walk into my local 7-11 store and help myself to a New York Times without paying for it, Can I say I'm just taking it out of "fair use"? Suppose I read it from cover to cover and return it the next day, would it be "fair use" then?

Posted at 6:24AM on Dec 19th 2005 by J.D. Adams

18. Dmitriy K wrote: If we are not making money, as above post states then I believe it is ok

Dmitriy:

With all due respect, you are technically wrong. But let me give you another example of why it's the wrong thing to do. Photographers license their photographs to clients, sometimes exclusively guaranteeing the client that the photograph will not appear anywhere else. These exclusive license can command very large fees. When you appropriate that photograph for your blog without permission, it not only violates the photographers copyright, but also violates the contract for exclusive use, which some company may have paid 1000s of dollars for. This opens both you and the photographer up to lawsuits.

Chip Mitchell

Posted at 6:24AM on Dec 19th 2005 by Chip Mitchell

19. As a budding photographer I can appreciate the apprehension others feel about stealing your work. First and foremost, posting someone else's photo on your blog isn't theft; it's copyright infringement. No matter how much the RIAA/MPAA repeat it, copyright infringement isn't theft.

Second, arguing against fair use isn't helping us as consciencious bloggers. Assuming I was asking for permission, under what conditions would you grant me to post one of your photographs on my blog? Do you prefer me to copy it to my server so I pay the bandwidth costs? Would you prefer me to link it from your site so you can monitor access via your web server logs?

I certainly agree that if I use someone else's photo on my site, I can't cover that with a blanket "All content copyright by me". I think the only ethical thing to do is include the photographer's (or artists, really) original copyright and a link to their site (or the original location of the image).

Now part of the nature of blogs is that they are updated frequently and expire rather rapidly. A site like http://boingboing.net won't keep an entry on their main page for more than a few days. How does that play with trying to get permission? Is it OK to ask for permission and assume you'll get it and post the image and then take the image down if you don't get permission?

Finally, I'd like to point everyone here to http://creativecommons.org/. Using one of the CC licenses makes it very clear how others can and can't use your work. Also, there are menthods for bloggers (and other content providers) to search for works that use CC licenses. There are many good reasons to use a CC license and it's safe to do so.

Posted at 6:24AM on Dec 19th 2005 by Doug Alcorn

20. Tyler - I agree with you that there is a "benefit" of sorts to a photog receiving traffic from the use of their photograph, someone saying that as justification for doing so still doesn't cut the mustard, IMHO. Valid points all around, though.

Posted at 6:24AM on Dec 19th 2005 by Tom