Can We Use that Picture on Our Website? “Fair Use” in a Pinterest World

Although the growing popularity of sharing sites like Pinterest might give the impression that photographs, drawings, videos, and other Internet content are free for the taking, nothing could be further from the truth. From law firm Mintz Levin:

“If these photographs were placed online by the individual who took the photograph, and there are no restrictions on the ability to print it out and/or copy and paste it elsewhere, isn’t it okay to do either of those things? The answer is ‘no,’ because to do so without the express permission of the copyright owner would constitute copyright infringement. By posting a photograph, a photographer of any type does not impliedly give permission for anyone to use it.”

But wait – isn’t using photos you find on the Internet considered “fair use?” That depends, writes social media attorney Michelle Sherman:

“Federal courts decide fair use issues by considering the four listed (but not exclusive) factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for profit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

Using the work of others for commercial purposes isn’t likely to pass the “fair use” test, however. Again, Mintz Levin:

“In a number of recent cases, individual photographers have successfully sued third parties for unauthorized reproduction and use of photographs, particularly those from stock photography sources. Courts have found third party liability for willful and innocent copyright infringement for the use of individual photographs and have awarded damages to copyright holders based on such conduct.”

Furthermore, writes law firm Winthrop & Weinstine, “[f]air use is complicated:”

“The complications surrounding fair use exist because fair use is a fact intensive defense. This makes it harder to predict the outcome of asserting fair use as a defense, which means it isn’t asserted very often. More often than not, users are too terrified of copyright infringement and monetary damages to assert a fair use defense. The unpredictability of the doctrine may not be worth the copyright litigation gamble, which involves high legal fees and possibly years before a resolution. Many people … weigh their options and decide to not use copyrighted material at all in an effort to avoid liability.”

The final word, from Mintz Levin:

“Copyright owners enjoy certain exclusive rights with regard to their copyrighted works including the right to reproduce the work in whole or in part, to publicly display the work, and to create derivative works based upon the original copyrighted work. In order for there to be copyright infringement, the infringer must have had access to the original copyrighted work and then committed an infringing act. Thus, seeing a photograph on a website and then copying and pasting that photograph somewhere else, without obtaining the permission of the owner of the copyright in the photograph, in most instances will constitute copyright infringement.”

Or, as Nancy Reagan famously put it, “just say no.”

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