Is it INFRINGEMENT or FAIR USE?

Is it INFRINGEMENT or FAIR USE?

Nobody really wants to steal someone else’s image. (Ok, there may be some sadistic individuals out there who are out to steal identities…but I assume that if you are reading this blog post, you are not one of them :)

But it’s a heck of a lot of work to make sure that every image I find can be used for my purposes. It's time consuming and tedious just to look for images, much less make sure I can legally use them!

It’s true, but try to remember that while annoying and confusing, copyright was created for our good. There aren’t lawmen out there snickering behind their hands at the frustration that it causes us…

And while using free images from the internet may be the safest route to take (for more information on finding free material, see my last blog post download), there are still ways to justify using copyrighted materials.

I am speaking, as you may have already guessed, about fair use. Before I go on, I should say that while I have done a lot of research about it, I am but a humble art teacher and not a lawyer. Despite this fact, I whole heartedly believe that what I am writing is true.

Fair use outlines four factors that you can use to gage whether or not you would be in the right in using copyrighted material without permission. It is not necessary to cover all the factors for each image or work that you use, but it is a good idea to cover at least two of them.

What are these four factors of which I speak? Well, they are as follows:

  1. The purpose and character of the use
  2. The nature of the work
  3. The amount of the work
  4. The effect on the market of the work

Now, let’s unpack these a little bit.


1. Purpose and character

This one has to do with what you plan to do with the work.

You can use the work if you are using it for: education, news reporting, parody, critique or commentary.

As an example:

YOU COULD take a picture of Robert Downey Jr. and make a short video to post on YouTube to report your opinion his latest movie.

YOU COULD NOT take that same picture and photoshop it to make it look like Robert was taken in a different place with different people, thus reporting false information as truth.

Robert Downey Jr
Image source

2. Nature

Is it fact or published?

You can use the work if you: take it from a published work or if it is a fact or if it is out of print.

As an example:

YOU COULD take the image of the construction workers eating lunch on a high beam (which was taken by an unknown photographer over 70 years ago) and make it look like they were eating donuts and drinking orange juice instead of sandwiches and whiskey.

YOU COULD NOT take digitalized donuts that you found online to place into the worker’s hands above.

lunch on high beam
image source

3. Amount

How much of the work was used?

You can use the work if you: use a minimal amount of the work

As an example:

YOU COULD take the eyes of one person, the ears of another, the mouth of yet another and the nose of a different celebrity and collaged them into one person.

YOU COULD NOT take entire works from photographers and merge them together into one photographic collage.

face collage
image source

4. Effect on the market.

Does it hurt another’s potential for making money on their creative work?

You can use the work if you: don't cause financial harm to the creator of the work.

As an example:

YOU COULD take an image of brush strokes found on the internet to explain show an example of how to do a certain technique.

YOU COULD NOT take an artwork made with a certain brush stroke technique and put it on the cover of your portfolio as you show work to a potential school or job.

brush strokes
image source

Most of the examples above have to do with using images you’ve found online. I assume that when high school students are having to deal with copyright in the realm of graphic design or digital photography, it means using images for projects. Admittedly, most of this doesn’t matter so much IF this work stays in the classroom, but it is really good to have these discussions with students so that they know the risks!

I hope that this clears up at least a little confusion that you might have about fair use and how it comes into play. My goal here was to break down each rule for you and help you understand them individually, but as you look at using copyrighted images you really need to look at all the factors together to determine if you can use copyrighted works.

Of course, the best course of action you could take would be to just ask for permission (most artists and photographers are flattered to be asked), but if that isn’t an option, fair use is your next best bet!

If you’re looking for more resources for teaching copyright in your classroom, we’ve got a BRAND-NEW unit that focusses on copyright and understanding fair use. You can use download the lesson plan for this unit below.

 

 

Want more clarification on how to "deal with copyright" in your classroom? You're in luck! We'll be hosting a webinar all about copyright later this month (January 2020). Click below to save your seat!

Save my seat!