Summary
This post examines the legal implications of using photographs in blogs from a copyright and fair use perspective, referencing the Katz v. Chevaldina decision in the USA. The analysis explains how the court found the blogger’s use of a photograph for criticism as fair use, and discusses the nuanced factors that determine if a use is fair, especially in commercial contexts. It highlights that giving credit alone may not always prevent copyright infringement and advises bloggers to seek permission or use Creative Commons licensed images. The post further clarifies the importance of understanding license types, especially for commercial blog use in India.
The Katz v. Chevaldina Decision
In a recent decision by the 11th Circuit Court in the United States, Katz v. Chevaldina, the court considered whether using a photograph to criticise a person’s business activities constituted copyright infringement. The court held that it did not, characterising the use as fair use on the grounds that it was made for purposes of criticism and was transformative. The court also noted that the use carried no commercial advantage to the blogger and was strictly directed at criticism.
The background to the case is as follows. Raanan Katz is the owner of several shopping centres in Miami. A blogger used his photograph to publish commentary on his business practices. Annoyed by this, Katz acquired a copyright registration in the photograph and then sued the blogger for copyright infringement. The District Court heard the matter and concluded that the use fell within the scope of fair use. The 11th Circuit agreed with the District Court and upheld that finding.
Factors Affecting the Fair Use Analysis
Whether a use of a photograph constitutes fair use is not always straightforward. Where a celebrity’s photograph is used and the blog generates revenue, the answer depends on how the photograph is used, what news it accompanies, the degree to which the photograph relates to the commercial revenues of the blog, and the primary purpose of the publication. Despite a potential fair use defence, bloggers should exercise caution in using photographs freely, and should note that merely giving attribution to a photographer may not be sufficient to avoid liability.
Creative Commons Licences as a Practical Solution
Bloggers with commercial objectives would be prudent to avoid using photographs not owned by them. Taking permission for any such use is the recommended course. Several photographs are available under Creative Commons licences, which can provide bloggers with a lawful basis for use. The safest Creative Commons works for a commercial blogger are those governed by licences that permit commercial use. Where a Creative Commons licence carries the “NC” designation, it restricts use to non-commercial purposes: a blogger whose activities are commercial must avoid those works.
Where Creative Commons-licensed photographs are used, the user must give attribution or credit to the photographer in the format specified in the licence or accompanying the work.
Disclaimer
This article is for general information and does not constitute legal advice. Readers should consult a qualified attorney before acting on any matter discussed here.