A Potential Pitfall of Fan Blogging

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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.
Source

(emphasis mine)

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.

17 Comments

  1. Sounds safe, but if an otherwise protected image, part of a series in a magazine article, is published in full, the fair use won’t apply.In other words, selecting just one image won’t trigger fair use.

  2. Perry, that’s true. It mostly (but not always) depends on what is said in the article where it’s embedded.

  3. I’m getting some really interesting hits on this piece. If I were paranoid, these hits would not help me.

  4. Thank you for sharing your thoughts on this. I am a newbie and very concerned about making a mistake.

  5. I stick with public domain photos or sites with photos where the photographer’s given permission to use them.

  6. For all other areas but the entertainment industry, I think that’s a good rule of thumb. With entertainment, the industry itself has muddied the waters by throwing in with fans. This started a long time ago with the Trekkies. I think the powers that be realized what a gold mine they have with fans promoting their projects. And the new model from media outlets is to cater to fans.

  7. And on other sites that are mine or I manage for others, which none are fan sites, I have the same approach.

  8. I meant I have the same approach as you.

  9. I think you’re right about the tolerance of the entertainment industry. I read an article describing how SNL made Youtube remove a video of a skit, and then realized that it was great marketing for the show and asked You Tube to restore it. While the statute as written applies to everything, I think the problem for us is the professional photographer. I just wish we could know who, in a photo shoot for a mag, owns the photos in the shoot, as it varies. I just saw on Tumblr that Richard Armitage Confessions is folding on account of this.

  10. It’s a shame about Confessions, but I certainly understand their position. As for the new business model in entertainment, it’s tricky because there is not a lot of legal precedent for the web. That may surprise some people but it’s true. Not very many laws about the web, and so copyright is being tested.

  11. Pinterest is a classic example of where copyright infringement may have a field day. Certainly the risk of intellectual copyright infringement has encouraged me to change the whole concept of my own blog to my own photographic images and therefore a completely different blog content to what I originally thought to do.

    If I use any images of Gisborne on the blog, they are usually direct publicity pics from Robin Hood and therefore the property of BBC/ Tiger Aspect Productions, so I try and acknowledge that.

    Most of my images are therefore my own or from Wikimedia Commons.

  12. Thanks, Frenz, I’ve been discussing this offline with some fellow bloggers. I certainly think the Internet has allowed this all to become one huge muddy, grey area . . . trying to be cautious and keep my eyes and ears open. Prue, you are so right re Pinterest!

  13. Too bad about Richard Armitage Confessions. However, I was a bit surprised by the statement that “numerous RA sites are being hit.” My understanding was that sites were pulling their pictures proactively because of CumberbatchWeb-gate, not that they had been invoiced. If it’s more than a voluntary decision on the part of the bloggers involved, I would certainly like to know.

  14. It is my understanding that the statement ‘several RA sites have been hit’ from the Confessions post is completely untrue. Speaking to someone who used to help run the blog, the person who wrote those words has misinterpreted the Cumberbatchweb issue.
    As for my site, I have not been contacted by any photographers, but I cannot afford to take that risk. I’ve made the decision to be more cautious from now on.

  15. Thanks for this Frenz. I’m being cautious on my RA-only Tumblr and it would seem I’m not the only one. My dash was quieter today.

  16. What happened to Cumberbatchweb? Should we delete all RA material from our tumblr? Well, tumblr is for the most part copyrighted material probably. I’m very puzzled and scared now.

  17. […] in the life of this blog. The second time was just a few months ago, which I talked about as a potential pitfall of blogging. The good news is I didn’t infringe. But if I even thought about it over the years, I had […]


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