I found it online, so it’s free, right?
Copyright, fair use, and where to get images you can actually use
Did you know you could be sued for using someone else’s photo in your school project? Or that you could be forced to pay thousands of dollars if you put a stock photo in your blog post without permission? And what do you do when you come across someone else making money off of something you made? I am not a lawyer, but I’ve collected a few stories that highlight the complicated world of copyright and fair use.
What are Copyright and Fair Use?
According to US Copyright law, “Everyone is a copyright owner. Once you create an original work and fix it, like taking a photograph, writing a poem or blog, or recording a new song, you are the author and the owner.” But what about work that is built from other work? What if your creative work is made using someone else’s illustration, photograph, or typeface? That’s where fair use comes in. Fair use allows for the use of “unlicensed use of copyright-protected works in certain circumstances” and is determined by:
- The purpose of the use (for instance, commercial vs. education use)
- The nature of the copyrighted work (for instance: Was the original work creative or technical?)
- How much of the copyrighted work was used
- The effect of the use on the market of the original work (Does the new work hurt sales of the original?)
Fair use is extremely complicated and any question involving fair use and copyright could result in a lengthy and expensive legal battle that should not be take lightly.
You can’t just grab any image from Google (and if you do, don’t lie about it).
To create his now-iconic “Hope” poster in 2008, Shepard Fairey searched google images for a photo of Barack Obama. Among the many results, he found images taken by photographer Mannie Garcia during a 2006 press conference with George Clooney and then-Senator Obama. After the poster became famous and Fairey made a significant amount of money from the work, Garcia was found to be the photographer of the original portrait. When he took the photo, he was working for the Associated Press, a new organization. The AP sued Fairey for a portion of the profits from the poster. Fairey argued that his use of the image was transformative, and originally thought he used a photo of Obama and George Clooney but cropped the original and made significant changes. He later discovered he had used a different image by Garcia, an image of Obama alone that was much closer to the final poster image. Fairey attempted to hide this evidence from the court, and eventually received a sentence of two years’ probation and a $25,000 fine over the case. For a detailed summary of the case including images of original photo and poster, check out the Case Study on Fair Use and Fair Dealing: The Hope Poster Litigation.
Not all legal things are ethical, like making $90,000 from someone else’s Instagram post.
Richard Prince is an “appropriation artist” known for challenging the limits of fair use and copyright. In the famous court case of Cariou v. Prince, Prince was sued for his use of Patrick Cariou’s photographs of Rastafarians in Jamaica. Prince’s more recent “New Portraits” exhibitions consist of inkjet prints of images from instagram with Prince’s added comments. Some art critics argue that Prince’s work is a Duchamp-like commentary on meaning of art and image ownership. Others argue that the work takes advantage of the subjects. Zoë Ligon, one of the women featured (against her knowledge) in the exhibition said in a statement on instagram: “What Richard is doing is questionably legal, but even if something is legal and “starts a dialogue” it doesn’t mean you should actually do it. Not all legal things are ethical. ” Model Emily Ratajkowski an essay, Buying Myself Back When does a model own her own image?, on her experiences as a “subject” in Prince’s show. She later went on to sell an NFT of a photograph of herself in front of Prince’s “artwork” of her instagram post, saying on twitter:
How many ways are there to draw a dog? According to Target and Disney, not many.
A corporation selling work that plagiarizes a small, independent designer? Turns out, it happens a lot. A lot. One notable example is the case of Modern Dog Design v. Target Corporation, et al. Modern Dog Design, a Seattle Design Agency founded by Robynne Raye and Mike Strassbuger, published a retrospective in 2008 that included endpapers featuring illustrations of “dogs we know” and “dogs we don’t know”. They later discovered their dog illustrations on a shirt for sale at Target to promote Disney movie, Sharpay’s Fabulous Adventure. After a long, drawn-out legal battle during which Modern Dog sold their studio and gathered over $40,000 in donations to pay for legal fees, the case was eventually settled for an undisclosed amount. A comment by one of the defendant’s lawyers, “You know, there are only so many ways to draw a beagle,” inspired a book of 1000 Dog Portraits: From the People Who Love Them.
All of this seems complicated. How can copyright issues be avoided?
Creative Commons is an international nonprofit that “helps overcome legal obstacles to the sharing of knowledge and creativity to address the world’s pressing challenges.” Creative Commons licenses are a way to explain how you are (and aren’t) allowed to use work. CC licenses explain whether or not you can modify a work and whether or not you can use it to make money. You can publish your own work with a CC license to control how others can use it (or not). You can also search for work with a CC license on sites like flickr or search.creativecommons.org.
CC0 is used to waive all copyright and essentially put work in the public domain, like this work from the Metropolitan Museum of Art. Work that is over 95 years old is typically in the public domain and therefore free to use, but artists can also choose to place their own new work in the public domain. Many museums and libraries such as the Digital Public Library of America offer digital copies of public domain works. The Creative Law Center website has a list of museums and galleries with work in the public domain. You can find more free image sources in the ongoing medium article by Dustin Senos, Stock photos that don’t suck.
Wherever you find creative work, check the rights. Sometimes an image or typeface is only allowed to be used under certain conditions, even if you pay for it. Maybe it can be used only once, or used for printing but not a website. No matter what, review the rights carefully. If you aren’t sure if you have the right to use something, especially if you intend to make money off of it, talk to a lawyer.
Further Reading
- Street Artist Sues Vatican Over Use of Work in Stamps
- Paula Scher, Herbert Matter & Swatch: Was it Plagiarism or Parody?
- Did This Fashion Brand Rip Off Timothy Goodman? (Turns out, no. But it’s still an interesting case to consider.)
- Who owns your tattoo? Maybe not you.
- You Be the Judge: Teaching Students Fair Use by Making Their Own Rulings
