By Matthew B. Harrison, esq.
PhotosAndTheLaw.com

How many of you have your own website that showcases your photography? How many of you use other websites – such as myspace, deviantart, webshots, flickr, etc – to display your work? The Internet can be an amazingly inexpensive way for you, as a photographer, to 1) be able to showcase your work and 2) hopefully bring in potential business through these self-promotional efforts. However, before you run out and get yourself a website to showcase your images, I would like you to think about protecting yourself and your property, so that you do not end up falling into the group that answers affirmatively to the next question.

Of those who do display their work online – how many of you have had the pleasant experience of surfing the web and seeing your image somewhere without your permission? Unfortunately, it happens more than any of us would like to admit and you need to be aware of this phenomenon so that you can adequately protect yourself.

As a point of reference, this article is about non-commercial use of the image by an unauthorized party as opposed to a commercial use. Unauthorized commercial use is an entirely different animal and may be outlined in future articles.

Pretend for a minute that you are not the intelligent and informed reader of this website that you are, but instead are my cousin Vinny. While he may think he is of sound legal mind, he is not a lawyer. He’s just a normal guy who doesn’t really know much about anything – and even less about technology. He may know what a computer is – but his main purpose for using it is the access to free adult material.

So while I can write about copyright protection until the cows come home, and throw out directives for you to assume that materials on the Internet cannot be used without permission – do you think that my cousin Vinny is going to listen to what I am talking about – let alone follow by my words? Not a chance – even if I had a scantily clad model holding up a giant sign.

But Vinny! You are committing a copyright violation by taking that image off someone else’s website and posting it on your page – or sending it out via email to your buddies – or even using it on your desktop as a background image.

His actual response: (after the shut up kid… you bother me) “Hey… I got it for free on the Internet… If they didn’t want me to have it, why would they put it out there?

What Vinny is trying to get at is a fair use argument. Does his justification have merit?

What is fair use?

Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. For example, if you wish to criticize a novelist, you should have the freedom to quote a portion of the novelist’s work without asking permission. Absent this freedom, copyright owners could stifle any negative comments about their work.

So what is Fair Use? The only guidance is provided by a set of fair use factors outlined in the copyright law. These factors are weighed in each case to determine whether or not a specific use qualifies as a fair use. For example, one important factor is whether the potentially infringing use will deprive the copyright owner of income. It seems straight forward, but unfortunately, weighing the fair use factors is often quite subjective. For this reason, the fair use road map is often tricky to navigate.

The Fair Use statute: The doctrine of fair use developed over the years as courts tried to balance the rights of copyright owners with society’s interest in allowing copying in certain, limited circumstances. This doctrine has at its core a fundamental belief that not all copying should be banned, particularly in socially important endeavors such as criticism, news reporting, teaching, and research. Under the Act, four factors are to be considered in order to determine whether a specific action is to be considered a “fair use.”

These factors are as follows:

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

So getting back to Vinny – if a work is freely available on the internet – making a copy will have little or no effect on its market simply because no commercial market for the work has been established or claimed… and that is not good for the photographer who gets ripped off from someone like Vinny. It means that as long as you – the photographer – were not selling the particular image copied (in the form that was copied) whoever did the copying has a pretty strong argument for a fair use defense.

So how do you protect yourself from falling into the trap of a fair use argument?

While I hate to say this because as an artist myself the following advice pains me…

A photographer needs to identify their work and claim the value of it on their website. One way to identify the owner of the work is to watermark the image; and if you really want to protect yourself at the cost of devaluing the overall aesthetic of the image – the watermark should be towards the center of the image so that it cannot be cropped off. By doing this – it is painfully obvious that the work belongs to someone.

By offering licensing to use the image, or making the image for sale in the form of a print on your website, you are evidencing actual financial value to the image on the site – and to any reproduction made by the image. This will, in the least, provide you with an argument against a proposed fair use defense that an infringer may have.

Matthew B. Harrison is an entertainment and media attorney with Harrison Strategies, LLC. The New York based talent management group has offices in Massachusetts, New York and Washington D.C. When not practicing law, Harrison also is a fine art photographer with FNS Studios located in Springfield, MA and Silver Jack Photo located in Brooklyn, NY. Visit him on the web at www.photosandthelaw.com or email him at matthew@matthewharrison.com