Legality of using online photos/pictures/images found on or from the Internet: is there a legal use?

A photo taken by my husband that I tweaked for a commercial ezine called The Examiner.

"Only use photos you have a right to use..."

I have been wondering for a long time whether or not I am doing something illegal by taking images photographed in the 1930s and solarizing and posterizing and coloring them and basically making them my own. For your edification and mine, I decided to examine this issue.

I googled all sorts of combinations of "tweaking public art" and "legality of using someone else's photos I have tampered with" but found nothing very helpful other than admonishments about stealing copyrighted material which I already knew was wrong, wrong, wrong.

So, I went to the source, the Cornell Law School experimental site describing the Copyright Act of 1776- very confusing indeed.

Definitions

First I read through the definitions and found a few concepts I thought relevant.

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a "derivative work".

The pieces I have used are preexisting and I have based my new creations on these foundational works. I have elaborated or put into place other modifications on these photographs. Therefore I would consider my new creations to be derivative works.

To "display" a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.

I display this derivative work on my Hub, so I guess I am displaying a work

The term "financial gain" includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

Well, I am in a position to accept financial gain receipts from Hub Pages, however I have not received a penny as yet. Does the fantasy of remuneration count?

A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is "fixed" for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

My HubPages account is fairly permanent unless I am booted out due to illegally printing stolen photos which I have turned into derivative works.

All Art is Derivative

What does that all mean?

I decided to switch to a user-friendly site. Namely, wikipedia, where I found all sorts of great information under the title, Derivative work. According to this site, a derivative work can actually be copyrighted itself, so long as it applies the all important quality of originality to the copyrighted piece.

I did make these pieces my own in order to enhance my storyline.

Something also considered vital to my cause... In Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., The appellate court said that "a party who distributes a copyrighted work cannot dictate how that work is to be enjoyed. Consumers may use ... a Game Genie to enhance a Nintendo Game cartridge's audiovisual display in such a way as to make the experience more enjoyable."

Getty Images distributes copyrighted work from the 1930s and 40s depicting American Life. It appears they cannot dictate how this work is to be enjoyed. I enjoyed reimagining it.

Then there is this whole fascinating area called Transformativeness, in which a derivative piece may transcend the original piece.

And Fair Use... In Kelly v. Arriba Soft Corporation, the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use."

The Wikipedia site on Fair Use explains, "The modern emphasis of transformativeness in fair use analysis stems from a 1990 article by Judge Pierre N. Leval in the Harvard Law Review, Toward a Fair Use Standard which the Supreme Court quoted and cited extensively in its Campbell opinion. In his article, Judge Leval explained the social importance of transformative use of another's work and what justifies such a taking:

I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. ...[If] the secondary use adds value to the original--if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings--this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

Well from this perspective, my use of this original photograph has created a new aesthetic as I used its raw material to communicate my storyline for the enrichment of society. Therefore I cannot be successfully sued.

Copyright Law

Fair Use- the four important questions

The four fair use factors:

1. What is the character of the use? Is trade actually or potentially diverted from the copyright owner to me?

* Nonprofit * Educational * Personal

* Criticism * Commentary * Newsreporting * Parody * Otherwise "transformative" use

* Commercial

If I fall among the first list, I am okay. If I fall into the third category I am in trouble. I am in the middle, i.e., otherwise transformative use but because I am using it for Personal and Educational use, I am pretty okay.

2. What is the nature of the work to be used?

* Fact * Published

* A mixture of fact and imaginative

* Imaginative * Unpublished

Again, the first category works in my favor and the last works against me. I am in the first category as I have published this online. The middle way is irrelevant here.

3. How much of the work will you use?

* Small amount

* More than a small amount

I used a small amount of the work. I am weighing in on the side of fair use.

4. What effect would this use have on the market for the original or for permissions if the use were widespread?

* After evaluation of the first three factors, the proposed use is tipping towards fair use

* Original is out of print or otherwise unavailable * No ready market for permission * Copyright owner is unidentifiable

* Competes with (takes away sales from) the original * Avoids payment for permission (royalties) in an established permissions market

My use includes both the first category here and the second category. I am not going to compete in any way with the original.

I can sleep well tonight!

© 2009 Barbara

More by this Author


Comments 35 comments

Ralph Deeds profile image

Ralph Deeds 7 years ago

Thanks for the information on copyright law. My impression is that the Internet has muddied the water a bit. Millions of photographic images are floating around on the Internet most of the time without any indication of who took them or when, let alone any way of requesting permission to use them. Other photos on the Internet are identified and protected from unauthorized use. As a practical matter, my understanding is that if the owner of a copyrighted image requests that the image be removed you are obligated to do so, but not further penalized. Take a look at this Hub about Richard Prince's use of images from Marlboro ads. What he does is called "appropriation art." If memory serves he just had a show at the Museum of Modern Art in New York. I wonder how he gets away with it?

I sometimes use pictures from Google images and YouTube videos to illustrate my hubs, and I also use quite a few of my own photos. The links for the videos are sometimes killed due to requests from the copyright holders, but I don't think that any financial penalty is exacted if the image is removed promptly following a request. I could protect my own pictures by reducing the resolution, if I chose to do so, but I usually don't. I understand that HubPages reduces the resolution of uploaded pictures so that they don't take forever to come up.

http://hubpages.com/art/Art--Fair-Use-or-Piracy


Storytellersrus profile image

Storytellersrus 7 years ago from Stepping past clutter Author

Hey Ralph, thanks for the additional information and thoughts.  I found another site, http://www.templetons.com/brad/copymyths.html that deals specifically with computer copyrights and it is pretty negative on using anything that is not original. 

From this moment on, I plan to use my and my husband's photos, truth be told.  It is much less of a hassle.  But I enjoyed the exploration.  The particular site I listed suggests there might be a problem with linking to another website (He gave blanket approval for anyone to link to his site as long as you don't email and ask him if you can, haha.)  Is this why HubPages stopped including links to other websites and now only links to other Hubs?  I wondered about it when it happened. 

Anyway, I think Prince gets away with his work because it is targeted and intentional parody. This type of parody, as in the Mona Lisa painting by Duchamps in the video above is considered legal.  See http://copyrightlitigation.blogspot.com/2007/12/ri... for comments on Prince's work.


Elena. profile image

Elena. 7 years ago from Madrid

Hello, story!  First, thanks for all this info! I feel a bit like Ralph, "Millions of photographic images are floating around on the Internet most of the time without any indication of who took them or when, let alone any way of requesting permission to use them."

The one thing that lets me sleep at night is that I never try and compete for gain with the author (whoever that may be!) of the photos I use in my hubs.  I quote the source if available, or the URL if not. Since I never tried to benefit from any of the images that aren't mine my conscience is clear, even though I can see that sometimes I'm not doing the "legal" thing.


Storytellersrus profile image

Storytellersrus 7 years ago from Stepping past clutter Author

hey Elena, I don't mean to give you sleepless nights, but I would recommend you read the templetons article I cited above.  I will copy it here- the writer responds directly to two of your assumptions:

first that because there are no copyrights on the photos, they are not copyrighted and second, that because you don't benefit from your use of the photos, you aren't in trouble.

Still, it's up to you.  I have done the same in the past but plan to change my ways.  It's not worth it to me! 

http://www.templetons.com/brad/copymyths.html

Thanks for stopping by... counting sheep does NOT work.


Blake Flannery profile image

Blake Flannery 7 years ago from United States

Storytellersus,

I think you have good information and you shed some light on an easily misunderstood and often under and over feared topic. You did not go into depth about how you can actually obtain permission in the form of a license straight from copyright holders. I use http://www.sxc.hu/index.phtml

I read the license which the site provides. It explicitly gives permission to use on websites for free. So I don't need to do any counting of sheep. Check out the license here http://www.sxc.hu/help/7_2

Another hub I wrote has to do with guessing calories. I e-mailed two site owners asking for permission. One declined and one said o.k. Here's my end result http://hubpages.com/food/Guess-How-Many-Calories-a...

By the way, I wrote a couple picture hubs and explicitly granted permission for anyone to use the pictures I personally took. I went so far as to suggest that us Hubbers unite and share with each other. I didn't get many comments. I guess nobody's mother taught them to share. http://hubpages.com/art/Free-Pictures-on-Hubpages


Storytellersrus profile image

Storytellersrus 7 years ago from Stepping past clutter Author

Hey blake!  That is awesome information!  Thanks so much!  I didn't read that last hub, sorry.  I have been graduating my eldest from college Phi Beta Kappa.  :)  yes I am a proud mama.  I will have to check out that Hub.  I truly love every hub of yours I have ever read.


Ralph Deeds profile image

Ralph Deeds 7 years ago

Storytellers, here's another hub relevant to your topic.

http://hubpages.com/art/Walker_Evans_or_Is_It


Storytellersrus profile image

Storytellersrus 7 years ago from Stepping past clutter Author

Thanks Ralph!  Always good to read more on a subject.

I checked out your hub and it does raise interesting questions about digitalizing a photo to seemingly improve it.

The photos I tweaked into illustrations were also depression-era photos. I wonder if these photos were taken by the same photographer. They have a similar quality. I love the black and white effect.

For my purposes, I am not an artist and so having a basic image to play with and convert into illustration was very helpful.

I'm not sure I agree with the New York Times writer's conclusion about enhancing Walter Evan's photos. I like seeing the shadow in the background become a girl. It makes the photo even more amazing.

What do you think?


livewithrichard profile image

livewithrichard 7 years ago from Charleston, SC

Very informative hub Story. It is my understanding that published works prior to 1923 are in the public domain and free for use by anyone. Here is a link for public domain images on wikipedia http://en.wikipedia.org/wiki/Public_domain_image_r...

It's probably a good idea to use images that are either in the public domain or works that have a creative commons license. Here is a link to find those http://creativecommons.org/ I should also note that unpublished works remain copyrighted until the creator of the work dies plus 70 years.

I found the info you provided on "derivative work" very helpful as I am publishing a hub on Fan Art which is most definitely derivative work. Thank you for your research.


Storytellersrus profile image

Storytellersrus 7 years ago from Stepping past clutter Author

Hello lwr! Thank you so very much for this information!!! I hope anyone reading this Hub will also read your comment. It is so helpful. I am glad I could offer you something helpful as well! Photos certainly enhance my Hubs, but I am determined to be legal about it! I have Bookmarked your references above. I look forward to reading your Fan Art Hub.


prasetio30 profile image

prasetio30 7 years ago from malang-indonesia

thanks for great tips how to using online photo.


Ralph Deeds profile image

Ralph Deeds 7 years ago

Thanks, storytellersus and livewithrichard for the good information. However, I note that Wikipedia says that "You are still responsible for checking the copyright status of images before you submit them to Wikipedia." Any idea how to check the copyright status of "Google Images?" I wonder why Google isn't responsible for checking the copyright status of images they provide links to on their site? And I wonder why the owners of the copyrights of the images linked on Google apparently don't have some responsibility for protecting their copyrights as most photographers who sell pictures do either by labeling them or by reducing the resolution so that usable digital copies or prints are impossible.

Copyright law needs some fine tuning, in my opinion, for it to be workable on the Internet. My impression is that the majority of the owners of the images that appear on Google images are not in the business of selling pictures and aren't concerned about unauthorized use, unless the use earns a significant amount of money.

And I wonder why the system used to protect video copyrights posted on YouTube, i.e., the owner files a complaint and YouTube avoids liability by simply by promptly removing the video. Seems to me the same approach would be workable for images that appear on the Internet when the copyright owner objects to their use. Finding and using an image strikes me as analogous to finding a dollar bill on the sidewalk. The dollar bill clearly belongs to someone else, but there is no easy way to return it to the owner, assuming you didn't see him drop it. Finding a billfold or purse with money and a driver's license in it is a different story. Not returning the billfold or purse with the money would be dishonest and possibly theft under the law. And I believe that the law requires anyone who finds a bag of money, e.g., that fell off a Brinks truck,to turn it in to the nearest police station. However, I don't believe that picking up a $5 bill off the sidewalk carries the same real or practical obligation under the law. (I'm not a lawyer, however, but my impression is that Internet law is still very much in a developmental stage because traditional copyright law doesn't fit very well in all cases.)


Storytellersrus profile image

Storytellersrus 7 years ago from Stepping past clutter Author

Welcome to HubPages, prasetio30!  I look forward to hearing tales of children in your classrooms.

Ralph, these are great points.

You are probably familiar with this Q and A found at Google Help, but I am going to copy it for other's benefit. It's found at http://www.google.com/help/faq_images.html

Q. Are there any copyright restrictions associated with the images?

A. The images identified by the Google Image Search service may be protected by copyrights. Although you can locate and access the images through our service, we cannot grant you any rights to use them for any purpose other than viewing them on the web. Accordingly, if you would like to use any images you have found through our service, we advise you to contact the site owner to obtain the requisite permissions.

And also this from the same site:

Q. If I am the copyright holder of an image that I want removed from Image Search, what do I do?

A. If you're the webmaster of the site from which the image was crawled, please follow these instructions. If you're not the webmaster of the site from which the image was crawled, you should contact the webmaster of the page in question and ask them to follow these instructions. You may also contact us by following the instructions at http://www.google.com/images_dmca.html.

Then there is Digitization 101 found at http://hurstassociates.blogspot.com/2008/12/more-o... which raises the question from a different perspective, but with the same basic need to understand. Read this...

Tuesday, December 30, 2008

More on the LIFE photo archive hosted by Google

My blog post on Dec. 2 about the LIFE photo archive hosted by Google received several comments about the copyright notice. Are all of those photos really under copyright protection? Two people, who are in contact with those on the project, said they would try to get an answer.

Checking the site, I see that all of the images still have a copyright notice and now contain the text, "For personal non-commercial use only".

Dear Time Inc. (owner of Life), you may think that's helpful, but it isn't. You haven't told us enough about your expectations. It sounds like you might want to consider a Creative Commons license such as "Attribution Non-Commercial No Derivatives." If that isn't what you mean, then create a page on the Google web site (or on your own) that explains what is legal in your eyes and what is not. Is educational/classroom use legal? Use in a student's report? Can an image be used in a blog? Can an image be used in a presentation that talks about digitizing photo archives? And if you want people to pay for an image, can someone pay for a digital copy?

Unbeknownst to you (Time Inc.), your users are web 2.0 savvy. They are not necessarily interested in printed framed copies of photos, but in digital versions that they can use in a variety of ways. Many don't want to use the images illegally, so they expect to understand how to gain legal access to the images. And if older images are marked as not being in the public domain, they need to know why.

Unfortunately for you, if you don't tell your users what you expectations really are and give them the correct tools, you're going to be disappointed with the results.


Ralph Deeds profile image

Ralph Deeds 7 years ago

Thanks, storytellersus. I had not seen the Google warning statement. I guess I'm stubborn, but it's hard for me to understand why it's okay for Google to use the copyrighted images without making an effort to contact the owners for permission while warning us that we should contact the owners of the images for permission. Something about that doesn't seem fair. What's sauce for the goose.


Storytellersrus profile image

Storytellersrus 7 years ago from Stepping past clutter Author

I agree completely. It simply passes accountability on to the consumer. Hey, isn't this a familiar pattern since Congress passed the infamous Bail Out?


Ralph Deeds profile image

Ralph Deeds 7 years ago

Yep. Here's one of the most famous images of all time by Steve McCurry which originally appeared on the cover of National Geographic. On Google images it can be found on hundreds of sites, (including one of my own.)

http://images.google.com/images?q=Afghan%20Girl%20...

When I used the image I didn't ask permission, but I included a link to Steve McCurry's website which offers for sale posters of the Afghan girl signed personally by McCurry. And I ordered one of the posters for myself and had it framed. McCurry has not objected to my use of his famous picture along with a few of my own. It's one of my most popular photo hubs. In retrospect if that situation (an image taken and owned by a photographer who is selling copies of the image)I would request permission. However, I wonder how many of the hundreds of other sites that have used the picture have requested permission?? I'm sure many have but I suspect that many haven't. That doesn't make it right. On the other hand there are plenty of pictures of Obama on Google images that have been used and re-used by plenty of paper and online publications and on a T-shirt. I'm sure several of the images came from Obama's campaign headquarters which was happy to have everybody use them. Requesting permission would be a waste of time for those images.

 

 


Storytellersrus profile image

Storytellersrus 7 years ago from Stepping past clutter Author

Ralph, that is an amazing image. I remember it from National Geographic now that I see it. I didn't realize it had been used so many times. I wonder if the photographer owns that photo? Does NG own the photos taken by its photographers or are they all freelancers? Anyway, I think it's very commendable that you are so diligent and concerned about this issue. I believe you are trying your darndest to do the ethical thing. Kudos!

Keep sharing what you know. I appreciate it.

Thinking about your statements, do you think a photographer would want hundreds of requests to use his photo or do you think he would just say, "Enough! I don't have time for this!" I would think that companies selling the image would need to give him some sort of commission, but not the others who are in essence marketing his image for free, i.e., once you see this photo, aren't you curious to see other photos he has taken? I am.

In the case of Obama, your analysis makes sense to me! I guess if using a photo educates the public or furthers the well-being of the business involved, as in photographer or campaign headquarters, well, word of mouth has always been the best form of advertising- and passing on an image works the same way! What do you think?


Bhawna Sharma profile image

Bhawna Sharma 6 years ago from Mumbai, India

I wanted to confirm the usages of images available on websites. God that I dropped here and read the hub along with following discussion.


Storytellersrus profile image

Storytellersrus 6 years ago from Stepping past clutter Author

Bhawana, I find it simplest to use my own photos, but sometimes I don't have the appropriate image! Glad to help.


kims3003 6 years ago

very well done article with lots of great information. nice writing style by the way A+!


Storytellersrus profile image

Storytellersrus 6 years ago from Stepping past clutter Author

thank you kims3003! hope you can use the information to your benefit.


bayoulady profile image

bayoulady 6 years ago from Northern Louisiana,USA

Wow,it is all so confusing. I do not want to do anything dishonest.

Well written...thanks!


Storytellersrus profile image

Storytellersrus 6 years ago from Stepping past clutter Author

bayoulady, it is confusing isn't it! This is why I tend to use my own photos most of the time- or my family's photos, I should say. Good luck!


days leaper profile image

days leaper 6 years ago from england

Thanks for help. I first learned one photo was illegal when I tried to make a "novelty stamp of Dianna Princess of Hearts. It seems you have to take the photo yourself.. This seems daft as it would often look the same, if not very nearly. It isn't like writing which takes somewhat more effort, I think you'll agree?


Storytellersrus profile image

Storytellersrus 6 years ago from Stepping past clutter Author

days leaper, I guess if I were making a living selling my photos I would be pretty upset if someone used it without paying for it. I avoid using anyone's photos but my own or my husband's work at this point, though in my early hubs I used what I thought were free photos. Hope I am right. I suppose I should go back and switch them out! Thanks for sharing your experience.


sligobay profile image

sligobay 5 years ago from east of the equator

This is a well-researched and concise explanation of a complex area of the law. Well done. Thank you for a useful article written in a readable style.


http://www.forexinuk.info/ 5 years ago

Thanks for help. I first learned one photo was illegal when I tried to make a "novelty stamp of Dianna Princess of Hearts. It seems you have to take the photo yourself.. This seems daft as it would often look the same, if not very nearly. It isn't like writing which takes somewhat more effort, I think you'll agree?


rasloo bux 5yg 5 years ago

days leaper 4 months ago

Thanks for help. I first learned one photo was illegal when I tried to make a "novelty stamp of Dianna Princess of Hearts. It seems you have to take the photo yourself.. This seems daft as it would often look the same, if not very nearly. It isn't like writing which takes somewhat more effort, I think you'll agree?

Storytellersrus 4 months ago

days leaper, I guess if I were making a living selling my photos I would be pretty upset if someone used it without paying for it. I avoid using anyone's photos but my own or my husband's work at this point, though in my early hubs I used what I thought were free photos. Hope I am right. I suppose I should go back and switch them out! Thanks for sharing your experience.

sligobay 8 weeks ago

This is a well-researched and concise explanation of a complex area of the law. Well done. Thank you for a useful article written in a readable style.


blake4d profile image

blake4d 4 years ago from Now Rising Out of Phoenix Arizona Earthlings

Imitation is the sincerest form of flattery, from the would be artist that is still mentally an amateur. Great artists steal from everything they see and do not try to lie about it. Imitation would be like reading a book, then deciding that to know more about books, you should read more books. Without care for their content, or language, or subject matter. You would become the hopeless imitator of imitators. Thieves are like artists in many ways more profound than the modern artist would like to admit. That is why stolen art is called piracy. All artists are pirates, all thieves are philosophers, and all truth is stolen from something before it is known.

Art is not art unless it threatens your very existence - a quote by Pursewarden

Keep on Hubbing. Blake4d


Storytellersrus profile image

Storytellersrus 4 years ago from Stepping past clutter Author

Pursewarden? What a great quote! I might steal it for my "Flaming of the Shrew" review!

Yes, blake4d, to believe art happens in isolation is to be completely oblivious. When one looks at the evolution of art and ideas, they feed each other and subsequent work. I suppose what is concerning, is if an artist (or author)takes something created for one philosophical purpose and applies it for opposing results. Like Einstein's energy formula that became a bomb. In the medium of art, it is difficult to copy brush strokes, etc- though forgeries can be made. But with photos and books, it is pretty easy to copy and paste. I suppose if one's livelihood is based on having a copyright, this becomes touchy.

Anyway, how can truth be stolen? Who owned it in the beginning, lol!?! Thanks for your great comment, blake4d. Love it when you stop by.


Nell Rose profile image

Nell Rose 4 years ago from England

Hi, its so confusing isn't it? I have actually used loads of photos before I realised, but now I check and double check, the trouble is so many people use the photo we don't know who the original is, as was mentioned, the one thing that amazed me, not photos, but actual books, is that if the book is over 70 or 80 years old, and no living relative etc you can actually make them into an ebook and sell! saw it on tv! not sure if that's such a good idea, but as theres nobody out there to yell copyright, then its okay, but it does seem a bit strange to me! thanks for the info, cheers nell


Storytellersrus profile image

Storytellersrus 4 years ago from Stepping past clutter Author

Nell, I did not know that! I thought copyright law extended longer than 80 years. I promise to follow up when I get a moment. If, I get a moment haha. Thanks for The feedback!


gail641 profile image

gail641 4 years ago from Mason City

I was afraid to use anyone's photos, because of the copyright laws. I looked for photos on wikimedia commons, but I wasn't sure how to use them, so I wouldn't get in any trouble. I really don't know how to import them. Some thing didn't show that your supposed to click on, something to do with the web.


gail641 profile image

gail641 4 years ago from Mason City

The "use this file on the web" doesn't appear above the photo, so I couldn't get it to work. It seems awful complicated and I worry about using someone else's photo.


Storytellersrus profile image

Storytellersrus 4 years ago from Stepping past clutter Author

If a photo is available for use, right double click on it and save it to your computer. When you need to use it, simply upload it from your file. But again, the safest idea is to use your own photos!

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