We’ve all done it.
If you blog, you’re probably guilty.
If you’ve posted, shared or tweeted an image, you’re guilty.
The crime: Pulling a photo, meme, image, whatever, from the Internet to spice up your content and not giving proper credit.
One of the golden rules of blogging is always include a picture. It’s the first thing a visitor will see and can be the sole reason a person chooses to read your post or to skim over to the next topic. If you’re like me, you spend almost as much time finding the perfect image to accompany your text as you did writing the thing. Heck, you might even open it up in Microsoft Paint and add your own touch. No? Just me? Moving on.
There to answer our questions was Sean O’Hara and Greg Collins from Snell & Wilmer, PLC, and Kercsmar & Feltus, PLLC, respectfully. We picked their brains far past our time limit by asking about everything from the Hippocratic Oath to Disney-themed events (which we all agreed: avoid Disney materials at all cost.)
Perhaps the biggest question on everyone’s mind was: If a photo has been publicly shared on the Internet, is it fair use?
The answer: It depends.
It goes without saying that you are better off using original material you created or paid for the right to use, but that isn’t always an option for a blogger.
The old standards included the four factors:
1) Purpose and character – Typically nonprofit, educational and personal are fair use. Commercial, entertainment and for-profit require permission.
2) Nature of work – Is it creative or drawn from facts? Creative material has more protection.
3) Amount – Is it supplementing your content or is it the focus of your content? The former is fair use.
4) Market Effect – Is the work in question going to impact public perception of your business? Yes means no use.
Going by those standards – each of which are subjective - social media would cease to exist. The Internet is still relatively new and laws have yet to catch up.
Surely the millions of people that shared a “Keep calm and..” or “Call me maybe” meme can't be held responsible for copyright infringement. I don’t even want to think about what would happen to Pinterest if this were true!
Searching for a definitive answer is opening a can of worms that can be difficult to wrap your head around. Internet sharing is now the driving force of marketing, and everyone wants to “go viral”… except the law.
So what’s a blogger to do?
The bottom line: Until clear guidelines are made (joking, it will never be “clear”) always link it to your source. Never use a photo that has a watermark or other obvious efforts to keep someone from using the photo (no “save as” when right clicking? Let it be.) Oh, and don’t make money directly from that content.
Even if your source is not the owner, there has never been a lawsuit won if the material in question linked to their source.
But do proceed with caution.