In a recent decision by the 11th Circuit Court in USA, Katz v. Chevaldina, the question of whether using a photograph to criticize a person’s business activities amounted to copyright infringement was raised. The Court answered that it was not copyright infringement, but amounted to fair use as the use was for criticism and transformative. The Court also pointed out that the use lacked any commercial advantage to the blogger, and was strictly meant for criticism.
Brief background is as follows: Raanan Katz is the owner of several shopping centers in Miami. A blogger used his photograph to blog about him and his business practices. Annoyed, Katz acquired a copyright registration, and sued the blogger for copyright infringement.
The District Court heard the matter and concluded that the use of the photograph is not copyright infringement. It stated that the blogger’s use of the photo for criticizing Raanan Katz’s activities falls within the scope of fair use. The 11th Circuit agreed with the District Court, and upheld the fair use judgment.
Would the use be considered as fair, if a celebrity’s photograph is used, and the blog generates revenues? The answer to this question is not so straight forward, and the answer would depend on how the photo is used, what news does it form part of, in what way is the photo related to revenues of the blog, what is the primary purpose of the blog, etc. Despite the fair use defense, it is important for bloggers to be wary about using photographs freely. Note that merely giving credit to the photographer may not be sufficient to avoid liability.
Bloggers having commercial objectives may therefore avoid using photographs not owned by them for blog posts. It is advisable to take permission for any such usage. Having said that, several photographs are available under Creative Commons Licenses, and bloggers may consider using those photographs in their blogs. The safest Creative Commons works are those governed by Creative Commons Licenses that permit commercial use as well. In other words, if a Creative Commons License has ‘NC,’ it must be avoided as it means that usage is permitted for non-commercial purposes only. If the blogger’s use is commercial, then works under this license must be avoided.
If Creative Commons photos are used, all the blogger needs to do is give attribution or credit to the photographer in the requisite manner. The attribution or credit format is normally mentioned with the work, or in the license.