The somewhat startling news about Cumberbatchweb receiving an invoice for photos they may have used without license is reverberating through the blogosphere. This is not the first time that fear has been felt among bloggers, and with the ever changing state of content curation on the Web, it won’t be the last. Even with my limited use of images on this blog, it still ran a chill up my spine.
And for me personally, I’ve not only heard about image companies breathing down the necks of bloggers, I had the dubious distinction a couple of years ago of my site being thoroughly crawled by Getty Images. Let me put that in plain language. They looked at every page of my site (including the attachment pages), and they have done it more than once. Thankfully, they didn’t find anything to take issue with, and I hope they never will. I took that as a heads up, and I’m considering what’s happened with Cumberbatchweb the same.
Where does that leave me as a blogger? I’m not entirely sure, but I’m going to share a little of what I think about media use on the web and in particular as it relates to the entertainment industry and this blog. I’ll start with the fair use doctrine in U.S. copyright law (a similar doctrine in the UK is referred to as fair dealing; please note it’s not exactly the same as the fair use doctrine in the U.S.).
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
- 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
- The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The case law and their conclusions on each one of these four factors can be so convoluted, I’m not really sure what it means. The only sure thing is to never post anything you don’t own. But the entertainment industry doesn’t really want you to do that. They often leverage fandoms to get publicity, and that in itself makes the fair use doctrine a bit murky with respect to entertainment images. However, I believe there is enough in the four factors to figure out how to proceed, and of course I say that with the proviso that things could change radically tomorrow. We just never know.
Most media on my site are screencaps. With respect to their use on this blog, I use the adage of don’t ask and don’t abuse. I also do some criticism, which may or may not be construed as added value. When I use screencaps, I never make so many that people can make their own film from them, nor do I reveal spoilers with the only exception being when a show is so old spoilers are moot. All other screencaps I consider promoting the show, and I think (which means I could be wrong), that’s how owners of the shows see it as well. Further, I think that the only time they would really object is if I were competing with promotion of their property or in someway marring it.
Same thing for official promotional materials. I don’t ask and don’t abuse. In fact, it’s my belief that entities such as Warner Brothers want us to disseminate those materials. However, if the materials are from other major media outlets such as a print or web magazine, I don’t post everything from them. Usually, I just post one image and that’s done so I don’t compete with the original publication itself but rather post as a teaser which can prompt those reading to buy the rest of the materials for themselves or at least go to the original site that produced them. Thankfully, in RA universe we have purchased quite a few materials and have oftentimes been responsible for selling out magazine issues even when the whole magazine has been posted somewhere beforehand.
Photos from a photographer’s photo shoot that are not specifically in a publication and are not put out on the web for sharing but rather to sell are another matter. Case in point are the recent Getty images of Richard Armitage. It’s clear (at least to me) these are not for our use except by purchasing a license. There is no grey area in my opinion, so I stay away.
For everything else, which includes non-entertainment and non-celebrity images, they are either mine, I have permission from the photographer, or I bought a license.
For all of you who sent me an email asking how I handle images, I hope this helps in some way. Obviously, none of it is legal advice since I’m not a lawyer. I’m just sharing my thoughts.
note: the artwork above is acceptable by the standards I apply here. It’s taken from a screencap and/or promotional materials and value has definitely been added. Click on the photo to see the artist’s deviantart page.