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This article provides general information regarding the use on Wikipedia and similar sites of photographs and other content that may be subject to copyright law protections. More specifically, it is intended to provide a general background from the perspective of the Wikimedia Foundation on the topic of “fair use” of materials that are subject to copyright protection. This article is for general informational purposes only, and does not constitute legal advice. It is the Wikimedia Foundation's general view of the matter. We recommend consulting an IP attorney if you have questions about whether any specific use would be “fair.”

General Information on Copyright Law

Copyright law protects original, creative works of authorship, such as paintings, drawings, writing, architecture, films, software, photography, and music. Copyright protection is secured automatically when the author’s work is fixed in a tangible medium of expression for the first time.

The 1976 Copyright Act gives the owner of a copyright the exclusive right to do a number of things, including making copies of the work, preparing derivative works based upon the work, distributing copies or transferring ownership, and performing and displaying the work publicly. The owner’s exclusive protection generally lasts for the life of the author plus 70 years, whereafter the work falls into the public domain and is available for use without the author’s permission. By affording a copyright owner this broad protection, Congress hoped to “motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.” Harper & Row, Pubs., Inc. v. Nation Enters., 471 U.S. 539, 546 (1985).

Because no notice of copyright protection is required (such as the symbol © or the word “Copyright”), it can often be difficult to recognize whether a work is protected by copyright. In the case of material posted on the internet, it can be especially confusing to recognize whether posted creative material (blog postings, photographs, videos, etc.) is protected by copyright. But because the material is stored on an internet server and therefore is fixed in a tangible medium, it is potentially protected by copyright law. A good rule of thumb is to assume that every creative work is protected by copyright, and that the author’s permission is necessary to use or make copies of the work (with one important exception discussed below).

For more information on copyright law and how it works, please see Stanford’s primer on copyright at http://fairuse.stanford.edu/overview/faqs/copyright-protection/.

The Fair Use Exception

“Fair use,” found in Section 107 of the 1976 Copyright Act, is an exception to the copyright holder’s right to prevent copying and use of a creative work. The Fair Use doctrine recognizes that some use of copyrighted materials without the copyright owner’s permission is necessary to fulfill the very creativity that copyright law is designed to foster. Stewart v. Abend, 495 U.S. 207, 236 (1990). Certain circumstances considered “fair” include using a copyrighted work for the purpose of criticism, comment, news reporting, teaching, scholarship, and research. For example, in certain circumstances, a writer may be allowed to quote from other writers in her article, and a reporter may be allowed to comment on someone’s photograph in his recital of a newsworthy event.

To determine whether use of a copyright protected work qualifies for the fair use exception, courts look at (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion of copyrighted work used; and (4) the effect on the market value of the copyrighted work. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). The central purpose of this inquiry is to examine whether the copied work merely supplants the original (which would not be fair use), or whether the copied work is transformative in nature. A work is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message . . . .” Id. at 578-79.

For additional discussion of the fair use factors, please see Stanford’s primer on “fair use” at http://fairuse.stanford.edu/overview/fair-use/four-factors/.

Determining whether a particular use is “fair” is not an easy task for courts, and two courts reviewing the same use may come to different conclusions as to whether the use is fair. There are, however, a few general themes that can be observed from the cases. Usually, a use of another’s work may be fair if it uses a very small portion of text for commentary, scholarship or similar purposes. See Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991) (holding that copying short insignificant portions of Wright’s unpublished letters for informational purposes was fair). Also, if a work was appropriated for competitive purposes (i.e. affecting sales of the original work) or commercial or advertising purposes (as opposed to non-profit, educational, or informational purposes), the use of the work is less likely to be fair. Harper & Row, 471 U.S. at 562. Generally, if less material is taken from a work (when compared to the amount and importance of the material in the entire work), the use is more likely to be fair. See Monster Comms. v. Turner Broadcasting, 935 F. Supp. 490, 495 (S.D.N.Y. 1996) (finding that a taking a small portion of the film for informational purposes was fair). Obviously, the “fair use” analysis is highly fact dependent, so it is helpful to look at certain examples from the cases discussed in the next section when considering whether use of a work will be “fair.”

Photographs and Fair Use

Photographs are subject to the same copyright protections, and fair use exceptions, as other forms of content. Courts faced with a fair use claim for a photograph apply the four factor test discussed above. Because of the intensely factual nature of the test, it is often difficult to predict how any court will rule on a fair use defense, and, as discussed above, two courts reviewing the same facts may come to two different conclusions. However, there are certain situations where courts have held use to be “fair,” such as when photographs are used for political criticism or comment, are newsworthy and not used for their original intended purpose, or are transformed into a new form that differs significantly from the original. Below are some cases where courts have found that someone has fairly used someone else’s photograph.

Political Criticism and Comment

In Baraban v. Time Warner, the court analyzed whether a political commentary of a photograph constituted fair use. The photographer plaintiff had taken a picture for a nuclear power industry lobbying group of a woman milking her cow one mile from a nuclear reactor. The photograph was meant to portray the safe relationship between cows and the nuclear plant. A critic of the nuclear energy industry wrote a book attacking the industry and reproduced the plaintiff’s photograph in a smaller, black-and-white format with text criticizing it. The court found this use to be fair, reasoning:

Mr. Baraban’s photograph … is a target of Mr. Celente’s criticism at least in part. The photo is part of a newsworthy advertisement that comments on an issue of public importance. The photograph is an integral part of that commentary because Mr. Baraban’s artistic portrayal of the wholesome duo [at] the … farm makes the point that nuclear energy is safe in a way that words alone could not. Thus, the photograph itself is a work of political commentary, and the defendants are allowed to quote or reproduce a reasonable portion of that commentary in order to respond to it.

Newsworthiness

In Nunez v. Caribbean Intern. News Corp., 235 F.3d 18 (5th Cir. 2000), a professional photographer took several photographs of the winner of Miss Puerto Rico Universe for use in his modeling portfolio. Id. at 21. Some controversy arose over whether the photos were appropriate for a Miss Puerto Rico Universe because the model was naked or nearly naked in at least one of the photos. Id. A newspaper then obtained several of the photographs through various means, and over the next week, without the photographer’s permission, included three of his photographs, along with several articles about the controversy. Id. The photographer claimed that the reprint of his photographs in the newspaper without his permission violated the Copyright Act of 1976. Id. Applying the “fair use” factors, the court focused on the “newsworthy” nature of the photographs, the difficulty of presenting the story without the photographs, and the minimal effect on the photographer’s photography business. Id. at 25. Specifically:

• On purpose and character of the use, the court found that the newspaper both sought to “inform” and “gain commercially,” and that the two purposes offset each other in the fair use analysis. Id. at 23
• On the nature of the copyrighted work, the court stated that the “reproduction . . . does not threaten Núñez’s right of first publication” because “they were hardly confidential or secret” because the photographer had “commissioned the pictures for the very purpose of semi-public dissemination.” Id. at 24.
• On the amount or substantiality of the use, the court found that the newspaper “admittedly copied the entire picture; however, to copy any less than that would have made the picture useless to the story.” Id. at 24.
• On the effect on the market, the court concluded that “the market for professional photographs of models publishable only due to the controversy of the photograph itself is small or nonexistent.” Id. at 25.

As a result, the court held that “where the photograph itself is particularly newsworthy, the newspaper acquired it in good faith, and the photograph had already been disseminated, a fair use exists under 17 U.S.C. § 107.” Id.

Transformative Purpose

In Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), the holder of copyrights on seven posters of the famous music group “The Grateful Dead” sued the publishers of biographical book, claiming that reproductions of the posters contained in the book violated its copyrights. Id. at 607. The court examined the four fair use factors and found that the use of each image was transformatively different from the original expressive purpose. The publishers used the images as historical artifacts, not artistic expression, to document the actual occurrence of Grateful Dead concert events. The court also found it important that the images were displayed in reduced size and scattered among many other images and text, and that the use of the images did not impact the copyright holder’s original purpose for the poster images, which was to promote concerts. Id. at 611-14. The court concluded that the book publishers’ use of the copyrighted images in its book was fair use. Id. at 615.

Size and Quality of Reproduction

In Kelly v. Arriba-Soft, 336 F.3d. 811 (9th Cir. 2003), the Ninth Circuit considered whether a search engine’s practice of creating small reproductions (“thumbnails”) of images and placing them on its own website (known as “inlining”) was fair use. Of importance was that the thumbnails were much smaller and of much poorer quality than the original photos and served to help the public access the images by indexing them. Accordingly, the reproduction of the photos did not did not undermine the potential market for the sale or licensing of those images. Similarly, the Ninth Circuit in Perfect 10, Inc. v. Amazon. com, Inc., 508 F. 3d 1146 (9th Cir. 2007) followed Kelly and found that a Google search engine had fairly reproduced thumbnails of a subscription-only website (featuring nude models).

For more cases that discuss whether the use of a photograph or other content is “fair” in a particular context, please see http://fairuse.stanford.edu/overview/fair-use/cases/

Conclusion

Under certain circumstances, users can reprint or upload photographs without a copyright holder’s express permission. Even if you believe the use to be fair, the copyright holder may disagree, and it will then be up to a court to decide. In making that determination, the court will likely evaluate each of the four fair use factors. In making its determination, one of the most important factors the court may consider is whether the use is “transformative;” that is, whether it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message . . . .” Campbell, 510 U.S. at 578-79. The following are some practical considerations that may influence a court's analysis for deciding whether an uploaded photo is fair:

(1) What was the original purpose of the photographer in taking the photograph, and is the photograph now being used for a different purpose?

(2) How much of the photograph is being used?

- Is the entire photograph being used, or just a portion?

- If the photograph is presented in the context of an article, is it cropped to omit portions that are irrelevant to the article?

- Is the photograph being reproduced in its original file size and resolution, or in some reduced size?

(3) Is there other material being used with the photograph, such as handwritten notes, historical or educational text, etc., that puts the photograph in a new or different context?

(4) What is the likely effect on the original market for the original photograph?