My recent book, Law and Authors: A Legal Handbook for Writers (University of California Press, 2020), includes a chapter on advice for authors wanting to use photographs and other artwork created by others in their work: their books, blogs, and social media.
When I drafted the chapter, I actually used photographs and images created by others to illustrate the points I was making.
Because I’m an attorney and law professor, I wasn’t surprised when my publisher asked me to obtain copyright permissions for the images. I also felt pretty confident that my uses of all the images in question were fair uses.
So what did I do?
A number of authors would have insisted on the fair use argument and claimed there was no copyright infringement on that basis. However, I’m a relatively risk averse person and I understand the risks publishers take if they don’t make sure permissions are secured for all the outside material an author wants to use.
The basic issues here involve copyright law and its fair use defense. For better or worse, American law is quite flexible and a little vague on how and when the fair use defense applies in the face of a copyright infringement concern. This is actually a feature of our system, rather than a bug. The idea is that the defense is flexible and can be applied in a non-prescriptive way to new situations (e.g. when a new copying or distribution technology is developed).
The problem is that the bottom line on whether a particular use is a fair use is really in the hands of courts. The copyright law itself is not prescriptive on this point, and in fact was developed originally by judges in this country before being included in the Copyright Act by Congress in 1976.
The lack of a clear explanation in the Act for what is, and what is not, fair use continues to give judges the flexibility to decide on a case-by-case basis whether a particular use is a fair use, based on the four “fair use factors” they developed, which now appear in the Act:
- the purpose and character of the use, including whether it is a commercial use or a non-profit educational use;
- the nature of the original work;
- the amount and substantiality of the portion copied; and,
- the effect of the use on the value of, or actual or potential market for, the work.
In my book, I give many examples of how these factors can play out in different ways, leading to different conclusions, even in extremely similar circumstances. It can be a fun thought experiment to play “fair use or not fair use?” in the abstract, but a frustrating exercise for those who want to use other’s copyrighted material in their own work in real life.
And it should be immediately obvious why publishers would rather their authors secure permissions from copyright holders rather than risk a court disagreeing with their fair use argument and making them pay often incredibly high damages awards and/or ordering books containing infringing images to be removed from sale.
The same thing goes for an author’s website, blog, and social media. It’s unlikely that a copyright owner would sue you for using their artwork online without permission, but it’s possible. And if it happens, the consequences can be severe.
Risk averse folks like me will typically ask for permission, and risk averse publishers will also usually do so. Getting permission isn’t necessarily expensive or difficult, although it can be challenging with art and photography to figure out who holds copyright on a particular image.
You can start by checking the Copyright Register and doing some Google searching. Wikimedia Commons is also a good resource for locating images that are either in the public domain or available under Creative Commons licenses. (If you’re confused about the difference between the public domain and Creative Commons, you might be interested in this blog post.)
There have been calls in recent years for publishers to be more assertive about fair use. After all, if I’m reproducing a small black and white version of a piece of art to illustrate a point about copyright law in my book, there is a good chance it really is fair use. But we wouldn’t know that for sure unless and until the artist sued me and/or the publisher, and a court ultimately decided the question.
I know this all sounds daunting, but it is the reality of having a system with a flexible fair use defense. Sometimes an author has sufficient bargaining power with the publisher to have the publisher secure and pay for a copyright license. However, in many, if not most, cases, the author will be required to secure a copyright license and to pay for it.
The author will also typically be required under a publishing agreement to indemnify the publisher for any copyright liability the publisher faces with respect to the author’s work, so, in these situations, an ounce of prevention really is worth a pound of cure.
My usual disclaimer applies: this article is not intended as formal legal advice, but merely as information. If you find yourself in a copyright conundrum, make sure you seek the advice of a lawyer or other knowledgeable expert.
Cynsational Notes
Jacqui Lipton is the founder of Raven Quill Literary Agency as well as a consultant on business and legal issues for creative artists. She also teaches legal writing at the University of Pittsburgh.
She writes regular columns on legal and business issues for authors for the SCBWI, Luna Station Quarterly, the Authors Alliance, Catapult, and Savvy Authors.
Her book Law and Authors: A Legal Handbook for Writers is available from University of California Press. Order direct from the publisher’s website and use promotion code 17M6662 at checkout for a 30% discount.
Cynsations does not offer legal advice. If you have a legal question, be sure to consult with an attorney.