Can You Use that Photo? Understanding Fair Use and What Photos Can and Can’t Be Used Legally on Your Blog

According to MDG Advertising, 37% of Facebook users engage more fully with a post that has a photo included; and 67% of customers state that the quality of a product's image helps them decide whether or not to purchase the product. One of the reasons that sites like Pinterest have become so popular is that people find the images engaging. You've probably heard it said that a picture is “worth 1000 words”. This is true because humans are visually driven.

The importance of image
The importance of image – 67% of customers state that the quality of a product's image helps them decide whether or not to purchase the product. Full infographic here.

Why You Should Include Photos on Your Blog

According to eMarketer's March, 2014 research on the types of content posted on Facebook, photos make up about 75% of the content posted and shared on Facebook pages. Those same photos have about an 87% interaction rate from Facebook users.

While your site visitors certainly don't expect to see only photos when they visit your blog, the success of photo-based posts on Facebook, Twitter and Pinterest prove that you should engage your readers with photos that enhance the text on your site.

Understanding Copyright and Fair Use

The many you create something, it is considered copyrighted. Sure, you can register the item with the US Copyright Office for additional protection and for the ability to reclaim any lost value, but once you create it, the item is yours.

This includes but is not limited to:

  • Written work
  • Photos
  • Art work
  • Movies
  • Music

Where Some Website Owners Get Into Trouble

Some people don't mean to violate copyright. They simply don't understand how it works, crediting properly, getting permission and what can and can't be used. There are also a lot of gray areas under the rules.

Where some website owners get into trouble with photos is that they simply pull up a search for say “photos of cute dogs” and copy the first photo they see that they love. However, the photo may be one that the photographer doesn't wish to share on any other websites. His copyright has just been violated.

morguefileWhere to Find Photos that Are Okay to Use

Fortunately, there are photographers who want to provide you with photos you can use on your site (assuming you credit them appropriately). There are quite a few sites where you can find these photos that are free to use as long as you credit them. These sites include:

  • MorgueFile
  • CompFight
  • PhotoPin
  • Public Domain Images (such as many in the US Government archives, but always double-check that you can use)
  • Screenshots of your browser window

There are also photographers who share their photos on stock sites. These are photos where you can buy the right to use the photo for a set purpose and location.

For example, you might buy the rights to use the photo on your website only. If you wanted to publish a book and use the same photo, you'd have to go back and buy additional rights.

Stock photos tend to be extremely high quality. Here are some sites that offer stock photos for sale:

  • iStockPhoto
  • Dreamstime
  • 123 RF

For even more ideas, check out Jerry Low's article on 20+ Free Image Sources for Your Blog.

Contact the Original Photographer

If you can't find the image you want at any of the above sites, because it is extremely specific, you must contact the owner of the photo and get permission to use the photo on your site. Some photographers will allow you to use it with a link back and credit to them. Some will say no.

If the photographer says you can use the photo, save the email in a safe place in case there is ever a question about whether you were allowed to use it.

What Is Fair Use?

Fair Use falls under the Copyright Act (Title 17 of the United States Code) and has a litmus test of four factors to determine if it is  fair to use a portion of a copyrighted work. Basically, if the work has familiarity and the person is using it in a historical context, then using a portion of it might be appropriate. However, it is tricky and you could be mistaken about whether the use is fair or not and wind up in legal trouble.

According to the Copyright Office, the four factors are:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. he nature of the copyrighted work
  3. he amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. he effect of the use upon the potential market for, or value of, the copyrighted work

Fair use tends to come into play more with written text. For example, if you wanted to quote from this article, you might include a short quote and credit it. Here is an example:

In the WHSR article titled “Can You Use that Photo? Understanding Fair Use and What Photos Can and Can’t Be Used Legally on Your Blog” by Lori Soard, she advises, “If the photographer says you can use the photo, save the email in a safe place in case there is ever a question about whether you were allowed to use it.”

That is a short quote, it's been credited to the original source and it enhances your article. More than likely, no one will complain about that small bit of a larger article being used as long as it is credited in this or a similar way.

When there is a question about copyright and whether the use is in the best interest of the original creator or the public, the scale seems to balance a bit more toward the public's interest, though.

When it comes to images, it is probably best to stick with royalty free and public domain photos. You can't really use a small portion of a photo and it is hard to know what would be fair use and what wouldn't. It really isn't worth risking a long, drawn-out legal battle when there are so many photos available that can be used without concern.

According to the Professional Photographers of America, a copyright is a property right. In addition, the site states, “Copyright infringements—reproducing photos without permission—can result in civil and criminal penalties.”

Rules Can Change

You can do everything right and use only sites that list Creative Commons photos, attribute as the copyright holder requests and still get a note from a photographer one day that you are using their photo without permission.

What can happen is that the photographer may initially offer the photo with a simple attribution but later change the rules and require payment for the photo's use.

First, it's important to keep notes about where you initially downloaded the photo and what the statement was about rights.

Second, if the photographer requests it, immediately remove the photo. Email her back and explain that you downloaded the photo on X date and attributed as stated, but have removed the photo.

Be polite. It is possible that someone stole her photo in the first place or that she simply forgot she offered it for attribution. A single photographer can take thousands of pictures a year and it is hard to keep up with them all.

If you follow these simple rules, you should find plenty of high quality photos for your blog and not run into any problems. Have fun finding those pictures that talk with 1000 words and enhance your articles.

Photo of author

Article by Lori Soard