What every blogger should know about copyright protection for photos and content

Recently, I had discussion with a member of the food blogging community about using someone else's recipes or photos on your blog. I thought it was o.k. to "borrow" as long as I gave credit and a link back to their blog or website. I was told "borrowing even with attribution" wasn't cool. Yet others had told me the opposite. So I was anxious to hear what the experts would say about this at BlogHer07 conference.

After attending The Art of Foodblogging and live blogging at the Professional Blogging: Art and Commerce session, I was still confused. So I asked Denise Howell of Lawgarithms, Between Lawyers, and Bag and Baggage, and Elise Bauer of Simply Recipes for some clarification.

When is it o.k. to use someone else's stuff (assuming that you give full credit and a link)?

Elise's response:

From my understanding, you just need to promptly take down a photo from a website if the copyright owner complains to you.

My point is that the creator of the photo is the holder of the photo's copyright.  Photos are protected by US copyright law, unlike recipes. So, if you find someone else using your photo, and you don't want them to, you can request that they remove the photo and they must comply with that request.

If you have a website and are using someone else's photo without getting their permission first, generally it will not be a problem if you are giving them credit for the photo, and linking to their website. Usually in these circumstances the photo owner will not ask you to take it down. But if they do, then you must comply.

Denise's response:

It's a strange technical distinction, I realize. The Perfect 10 v. Google case found there was no direct copyright infringement in inline linking to, and displaying, an image residing on another's server.

There's a difference between what Google does, though, and leeching bandwidth or "copyjacking" as another lawyer (Erik Heels) has recently called it.

If you're inline linking with attribution, presumably you would fall under the logic of the Ninth Circuit's Perfect 10 v. Google decision. Other circuits may or may not follow this decision; that remains to be seen. For now, it is the most on-point and persuasive U.S. legal authority.

If, on the other hand, you're copying an image, hosting it on your own server (or a server other than the one where you found it), and displaying it, you're outside of the Ninth Circuit's reasoning and perhaps engaging in infringement (unless it's a fair use; thumbnails may or may not be a fair use; see below).

The Perfect 10 v. Google case has not been specifically applied to a blog. The Perfect 10 case (and the earlier Kelly v. Arriba Soft case on which it relies) also found that a search engine's copying and display of thumbnail images constituted fair use, but again, this has not been applied to a blog (and there is much discussion in the two decisions tying their conclusions to the social benefit derived specifically from search engines).

Elise is right in urging caution, despite what the law on inline linking seems to be, as no one wants to be the test case. It's thus a good "belt and suspenders" approach to always get permission even if you're inline linking with attribution, or alternatively, to use a photo that is in the public domain or licensed for the use you intend.

Other Resources:

Some posts on copyjacking, copyright, embedding, inline/hot linking, etc. from Denise:

• YouTube Embedding and Copyright
• P10 v. Google: Public Interest Prevails in Digital Copyright Showdown
• A Call for Freakanomics to Clean Up Its Act
• Help Coin a New Term for (Bad) Hotlinking
• Freakonomics Hotlinking Victims
• Help Save Freakonomics

Food Blog S'cool - information on how to get people to stop using your photos and content without permission - see side bar and copyright pull down menu

Problogger - Copyright and Blogs - 14 Guidelines, Cooking Up a Storm Over Blog Copyright, and Keeping it Legal

UDPATE: Denise and Elise have also left comments below.

Comments

[Elise]

The Perfect 10 case appears to do with the fair use of thumbnails and Google's approach of framing an entire web page in their search results.

When you copy someone else's photograph, even when it is hotlinked, on your web page, generally you are not doing what Google does (frame the entire page, not just the photo). As such, it is my understanding, that you are at risk of copyright violation, unless the photo has been published under a creative commons license allowing such use, or the photo creator has given you permission.

[Denise Howell]

The distinction is whether you're copying and hosting the image yourself or merely inline linking to it at its original location (i.e., displaying it from that location with the < img src= > tag and an < a href= > link). Perfect 10 dealt with both the fair use issue on thumbnails *and* whether inline linking + display of full size images constituted infringement; it found it did not.

There's enough uncertainty in this area (and enough confusion about what sort of linking activity is or is not permissible, quite apart from copyright law) that the *safest* course for bloggers is to use public domain works or make sure a particular use of a non-public domain work is authorized (via Creative Commons or other license). Flickr's Creative Commons search and "blog this" feature are great resources in the case of photos.

[Elise]

The case is also specific to Google as a search engine, a "third party intermediary", not another similar website:

the bottom line is that the Court upheld important policies of fair use and freedom online and resisted Perfect 10’s plea to put copyright owners completely in charge of how and when search engines and other online intermediaries can provide their users with links to images.

The court rightly took into account the important public benefit that search engines provide -- not simply the impact on the particular parties in this case -- and what would serve copyright's fundamental goal of promoting access to creative works. While Google's transformative use of the image provided a very real public benefit, Perfect 10's potential loss of thumbnail licensing revenue was highly speculative.

So copyright protection not extending into Search Engine search results doesn't mean that this is true for regular websites.

[Elise]

Above quotes are taken from the Electronic Frontier Foundation article on the P10 vs. Google case.

[Denise Howell]

The part of the article you're citing refers to the earlier Kelly v. Arriba Soft case, which hinged part of its fair use analysis on the public benefit of search engines. The portion of the Perfect 10 v. Google case to which I refer isn't about fair use but rather whether inline linking is infringing at all (the court found it wasn't). Unlike the portion of the Kelly case referenced in the EFF article, this reasoning in Perfect 10 was not search engine-specific. See http://www.eff.org/deeplinks/archives/005350.php for Fred von Lohmann off EFF's take on the inline linking issue.

[Jonathan Bailey]

It seems, to me, that the bottom line for most Webmasters is that there is enough legal uncertainty here to warrant Webmasters look elsewhere for their images. Denise mentioned the public domain and CC licensed works, I think that's a great place to start.

Most people I talk with could care less about whether they would win in court, but rather, about being sued in the first place. For all practical purposes, small Webmasters want to steer clear of gray areas and, for better or worse, this is one of them.

Still, it will be interesting to see how this pans out...

[Elise]

Ah, interesting. So there appears to be less copyright protection if the violator is hotlinking the image. Well that is a double wammy then. At least in the case of YouTube, people embedding YouTube videos have permission from YouTube to do just that, and hop on their bandwidth. But I, as a website owner, do not give people permission to use the bandwidth I pay my web host to hotlink images from my site. I consider it theft. Is there any case law to support protecting me from people hotlinking images from my site, and using up my precious bandwidth?

[Patricia]

We only use photos under the fair use permission in our blog. For the rest of the site we purchase stock images, or shoot our own.

[Jean]

Perfect 10 v. Google seems to be reversed in part, affirmed in part by Perfect 10 v. Amazon. And in that case, the court says, "Although an image may have been created originally to serve an entertainment, aesthetic, or informative function, an Internet search engine transforms the image into a pointer directing a user to a source of information. Just as a parody has an obvious claim to transformative value because it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one, a search engine provides social benefit by incorporating an original work into a new work, namely, an electronic reference tool. Indeed, a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work. In other words, a search engine puts images in a different context so that they are transformed into a new creation." Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007).

I'm not a lawyer (yet), but I think you can apply this fair use interpretation to the use of link in your personal blog. I just found this case and skimmed through it, but I'm planning to write more on it on my blog.

[Mike G]

Hi there -
I have a blog in which I review great free tutorials, online training, etc. Currently the reviews take the form of text descriptions and links to the sites. The reviews are all positive, so I've had no objections from the training publishers about my posts. Here's my question: I've been thinking of adding little images from the websites I review (thumbnails, screen shots, etc.) to make the posts more appealing. Do I need to get permission before I post reviews with such pictures or can I simply post them, notify the site owner about the review and wait for their response? Thanks for any guidance.