For bloggers the available Getty imagery I was talking about in yesterday’s post doesn’t always suit the purpose. We often need very specific images to illustrate our respective posts. If I am writing one of my *ooof*s, for instance, I want to include the image I am analysing, but not a completely unrelated even if equally yummy photo of the man who graces all the images I discuss. Getty seems to allow embedding mainly on the press photographs in its image bank. But if we are talking about a specific photo shoot that is not covered by Getty’s (predominantly) news photography, we are back with the old conundrum: the problematic nature of using copyrighted images for illustration on-blog.
Even though the topic springs up periodically, and most of the bloggers I know are very aware of the potential pitfalls of copyright issues, there is a lot of confusion about the various rules within. As a blogging photographer – or a photographing blogger? – I am constantly thinking of copyright regulations, both in terms of making a post visually attractive as well as looking at it from the photographer’s POV who wants needs to sell images. So my conclusions refer to the use of lens-based creative work. My personal view on the use of *my* images concludes the post. For easier overview I have labelled my interpretations with the corresponding question. Law is not my profession, and therefore please keep this in mind:
The Big Disclaimer: The following is an explanation of copyright as *I* understand it. This is not legal advice, it is a personal POV.
What are copyrighted images?
Any creative work automatically is copyrighted. We most commonly understand that to apply to original literary, dramatic, musical and artistic works, i.e. novels, stories, poems, plays, scripts, songs, paintings, sculpture or photographs. But it also applies to film, sound recordings, broadcasts, computer software and even performances. Copyright is attached to any creative work from the moment of its creation. It does not matter whether it is published or not – the moment a photographer releases the shutter on her camera and creates an image, that photo is automatically protected by copyright. And there is not even an obligation for them to mark their work with a little © (although that is a practice that is strongly recommended).
What does that mean for the creator?
This means the created photo belongs to the photographer and she has the right to prevent others from using her work without permission. “Use of work” includes copying, publishing, distributing and adapting the images. Because it is through these restrictions that the photographer can assert her rights and actually earn her living with her creative work.
There is also a moral dimension to copyright: This includes the right of the creator to be credited as such, as well as the right to not be falsely attributed, and – importantly – the right to prevent alterations of the creative work.
However, there are exceptions to copyright. The keywords here are “fair use” and “fair dealing”. They describe the use of copyrighted material for the purpose of research, private study and education, and the use for criticism and review or current news reporting. In both cases the photo has to be attributed with creator and title.
What are the implications for bloggers?
If bloggers want to comply with copyright rules they need to ask themselves whether they are using the images within the realm of fair dealing. IMO that tends to be the case with bloggers: We tend to use images for illustration purposes when reviewing RA’s work, for instance I review RA’s work in The Crucible and I will include an image from a photo shoot that shows him as Proctor. Or I might analyse an image from a photo shoot and include the image that I am reviewing. As fan blogs bz and large are non-commercial, this looks like fair use of an image to me.
Are there workarounds for the copyright conundrum?
Of sorts. A copyrighted photo can be used if it has been “insubstantially copied”. For copyright to be broken, a substantial part of the photo in question must have been copied. Insubstantial use of a copyrighted image, however, would be the creation of a derivative work, or using only a small part of an image, for instance a crop of a Proctor photo that shows only RA’s beard eye. Transformative/derivative work contains only bits of copyrighted images and does not look like the original work any more (a RAPS would be such a transformative work).
What about screen caps then?
IMO screen caps are not transformative or derivative work. If they show the substantial part of the original work, they are a mere copy but have not been transformed into a new derivative work.
How do photographers look at the issue of distribution of copyrighted material?
Well, that is of course highly individual, and we have seen different approaches even within the relatively small area of RA photography. Some photographers are happy to share their imagery for blogging purposes, some are explicitly forbidding editing and sharing, while the great majority have not pronounced any opinion on it at all. But here is my personal POV as a photographer who has created an image that has seen wide distribution and use on various Social Media platforms from Tumblr via Facebook and Twitter to WordPress and Pinterest. (I’ve even seen it on smartphone cases and coasters :-D)
- Credited distribution/sharing: yes. I don’t really mind distribution of my work as it increases my reach.
- Unattributed distribution or (public) use: ok-ish, but I am not fond of people *not* crediting me. It doesn’t cost anything to send me an e-mail and ask. It is also a matter of courtesy.
- Alteration/manipulation/editing: no. At least not without prior permission. Because that is where it gets personal. As the creator *I* have decided on the final version of *my* creative work. And that is what I want my name to be associated with.
- Commercial use: big NO-NO! I am happy to share and let others enjoy my creative work, and I will probably also allow it to be used for derivative works if I am asked nicely, but if someone uses my creative work to make money, then I want to be asked and I want a share in it.
Once more let me point out that this is *not water-tight legal advice* but *my* personal understanding of the situation and *my* approach as a photographer. That is not to say that I haven’t unknowingly broken the rules myself. I try to be fair about other people’s creative work in that I credit and link to them, mostly avoid alteration of images, and respect their wishes if known to me. I do not have any problem with fellow fans who enjoy and master manipulating and editing images, and I very often admire their work. (It features heavily in every week’s Armitage Weekly Round-Up.) In fact I find it one of the most entertaining facets of fan activities, and it delights and amazes me to know that many a career was fostered on initial creative expression as a fan. I just don’t engage in it myself – without any judgment inferred. So keep calm and carry on being creative!
Some links for research:
http://en.wikipedia.org/wiki/Fair_dealing
http://sarafhawkins.com/copyright-fair-use-and-online-images/
http://12most.com/2013/03/26/ensure-using-legally-online-photos/
Guylty Pleasure 
This is a great review of the issues at hand. Tumblr especially is a murky world where we seem to acknowledge that there is such a thing as copyright and yet we’ve developed odd rules for when it is/isn’t to be respected. As someone who does a bit of editing and manipulating I always feel the push & pull of the issue and know that no matter what the conventions are, I’m in the wrong because I do not have the original photographer’s permission to alter their art. I try to make whatever I’m working on look substantially different than the original so that it does not appear that I’m trying to ‘improve’ an original work but instead, that I am interpreting it or am inspired by it. A rationalization, to be sure. When I include credit it is invariably from the image bank where I have found the photo but is rarely the photographer who gets the mention (specific professional photoshoots excepted, where the artist’s name is available in most cases). Tumblr, as opposed to Facebook, Pinterest, Twitter, Instagram, or Weheartit, has the convention of conferring some form of rights onto the editor/manipulator which amuses me to no end. The photographer or image bank does not get credit but the editor does? Silliness, but it is silliness I will observe for sake of respecting the community of which I have chosen to be a part. Looking through my archive I would estimate that less than a quarter have photographer or image bank credit attached to them. I am inappropriately smug to say that my edits are somewhere in the 98% credit range. So what? I don’t have permission to use or manipulate them. I have no right to feel like I’m doing a good job. I have, however, come to accept this breaking of law much like I accept speeding on the highway. I can go the posted speed, it’s a choice (an imperative?) available to me every time I get in the car. However, I tend to go with the flow of traffic in the middle lane – not the slow lane and not the fast lane but the middle lane where the authorities won’t bother with me and I can feel smug that at least I’m not going THAT fast and I’m just doing what everyone else is doing. The whole thing is a tension I can’t resolve … I want the artist to be properly compensated and recognized for their work AND I want to see cool edits by fellow fans who do it all for the love of sharing with their fellow well wishers. I guess I’ll continue in the middle lane, keep looking out for speed traps, and brush aside my feelings of guilt.
On another train of thought: I read somewhere that screen caps and gifs were eligible to qualify for fair use because they represent a miniscule fraction of the original work. For example, a gif may contain 30 frames of a movie or tv show which is made up of hundreds of thousands of frames. This is similar to quoting one line out of a book or play. The point which I don’t have a grasp of is: what the ‘art’ is comprised of. Is it an image or the entire video product? Determining this is far above my pay grade, I’m afraid. It hurts my brain to even try to guess, and even if I did, there are probably differences from country to country. From your review above, it looks like the ‘art’ is an image from the video and that blows the idea of gifs and edited screen caps out of the ‘free game’ water. I like consistency so that I don’t have to get a migraine figuring out a rabbits’ warren of rules. I vote for screen caps being treated the same as single images from a photographer 😀
THANK YOU Guylty for exploring this topic, and sharing it with clarity and an appreciation for the sketchy point of intersection where legal & moral meet practical & actual.
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Just a quick reply on the screencap issue – I didn’t clarify that properly in my post, but I was actually thinking of a screen cap of an image, not a screen cap of a film, hence my interpretation that it is an unaltered copy of the original. A screen cap of a video might be a different kettle of fish. As could be gifs. Since I do not engage in giffing, I did not look into that and have literally no idea how to interpret them in terms of copyright.
I’ll try to respond to the other points you have raised later.
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Lovely posts aside, the fact that yours’ are in the “98% credit range” is why I am always comfortable reblogging from you jollytr.
I hope I would be somewhere in that vicinity myself. 🙂
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Hehehe I think we have a mutual admiration society going on – I LOVE your edits and pillage your archive on a regular basis. You not only make lovely pieces of art but you are a generous person! I remember what a bull-in-a-china-shop I was when I first joined tumblr and you were so kind and patient with me. I fumbled and stumbled all over the place for a few months but you were gentle and never made me feel like a horrible person. That`s true of Guylty too and I appreciate both of you to the ends of the earth!
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Thank you for your post, guylty. 🙂
Nevertheless as most of the material I use in the blog comes from videos/screencaps from tv series or films I’m curious to know more about “which is my position”. Of course, I’m quite sure I break some coypright law with “my” gifs and edits, but, honestly speaking, given the quantity of money I spend every year on original material (DVDs, books, cable tv, downloaded films – and now also theatre plays – ) I will keep on giffing and editing: I don’t get a dime from those whereas I have paid for them.
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Just to clarify – I was really speaking from the POV of a photographer. Gifs and videos are not my genre, so I my opinion on that is only half formed. I am not sure what constitutes substantial or insubstantial copy of filmed material. It’s a bit easier to define when it comes to stills.
I’d like to point out again that my post is only a personal POV and not meant as policy or prescription. I am a voracious consumer of gifs and clips and think that creative expression ought to be fostered not prevented. Well, within reason, of course.
The issue is sticky and will remain to be so. The least people can do is inform themselves about copyright laws and make their decision based on how they can argue their case.
As I said in my last sentence – I hope people continue to express themselves creatively.
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Well, that I’m “breaking the law” is obvious… it is written in the DVD covers “all material, etc etc etc” 🙂
I’ve understood what was the aim of your post, you’ve been very clear. It is me who constantly strays away from the point. 🙂
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I struggle constantly with this whole issue, every time my finger is poised over the post/reblog button. I do try to do the “right” thing where copyright is concerned (to the best of my hazy knowledge) but the only consistency really is my inconsistency. 😦
I now generally just use my screencaps for editing and steer clear of professional photoshoot images which I did work with earlier on.
As I said above, I hope I would be in Jolly’s 98% credited range, not just for images, but transcripts, audio work, interviews, video etc. It’s not just the professionals who get paid to produce this media, but also the volunteers (such as at RACentral and RANet) and it’s simply good manners to acknowledge their work.
Thank you for your POV at the end re distribution etc of your images Guylty. It clarifies that I am on the right track when it comes to making decisions as a blogger. 🙂
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Very interesting to hear your POV as a photographer. I agree also that in spite of Getty’s good move toward allowing bloggers to use images, they have mostly made press photos available and not photo shoots, which are often what we want to discuss. It’s understandable that the photographers involved in those shoots want to keep more control, as they have invested more effort and time.
Gorgeous Thorin shrine with the crowns!!
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