Using Copyrighted Images Under the Fair Use Doctrine
Why as the de facto in-house attorney for ILLUMINATION Integrated Publications I have never granted this exception to a writer on Medium and likely never will
Introduction
Last February, due to the unacceptable volume of issues related to photographs and other images (“Images”) that the editors of our publications have to deal with in writers’ submissions, Dr Mehmet Yildiz, in consultation with myself and several other senior editors, published a first-of-its-kind on Medium and comprehensive policy on what we expect from writers with respect to Images and how our publications will handle these matters.
As stated therein:
In order to comply with laws of the United States and Medium’s rules and guidelines (“Laws and Rules”), my publications have strict rules about the use of “Images” of any kind (photos, graphics, vectors, graphic designs, GIFs, etc.) in submitted stories.
Managing issues related to story images has become a nightmare for our editors. We waste too much time thus I want to stop this unnecessary work now.
It is the writers’ responsibility to submit Laws and Rules compliant images and cite them correctly. Previous informative and educative attempts helped improve the situation however as more and more new contributors join we repeatedly experience the same issues ad nauseam.
That document further stated:
Please do not request any exceptions, even if you believe your image complies with the Laws and Rules. We are writers, not visual artists. I have never seen a story on Medium that is made or broken based on the ability to use one particular image
and on the matter of exceptions, Dr. Yildiz also specifically wrote:
Please do not make “fair-use” exception arguments. Most of us are not lawyers and I will not risk allowing my editors to make decisions that require such specialized knowledge
Nevertheless, writers all-too-often do make fair use arguments, and as I am an attorney and used to regularly practice law for a living, these requests are usually referred to me. We had a particularly contentious discussion a couple of days ago with a writer seeking to use a copyrighted Image under fair use provisions of the relevant statute. Mehmet graciously spent his scarce time discussing our policies with the complaining writer for an hour as his aims always include protecting our writers by informing them. He advised the writer he would add more clarity on our positions on fair use in our current policy document. Thus, we decided that we need to supplement our published policy with a specific discussion of fair use and I volunteered to author this document.
I thank Britni Pepper, Carol Price, John Cunningham, and Mehmet for their review of and contributions to this article.
Fair Use
While US law establishes protections for copyright holders, it also defines limitations to their rights. One such example is the doctrine of fair use (Section 107). Individuals using copyrighted works for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research” can weigh their use against the four factors defined in Section 107 to determine if they need to seek permission from the copyright holder. The four factors are:
(1) The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
(2) The nature of the copyrighted work;
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) The effect of the use upon the potential market for, or value of, the copyrighted work.
Factor One
The first factor pretty much ends the debate. While a writer could agree not to meter their story (not place it behind the paywall), unless one of the publications’ senior editors have a relationship of trust with the writer, I would not believe that the writer would not revert the story to metered status after publication.
Regardless of Factor One, the other factors all come into play in this balancing of interests analysis.
Factor Two
This factor centers on the work being used, and the law allows for a wider or narrower scope of fair use, depending on the characteristics or attributes of the work. For example, the unpublished “nature” of a work, such as private correspondence or a manuscript, can weigh against a finding of fair use. The courts reason that copyright owners should have the right to determine the circumstances of “first publication.” Use of a work that is commercially available specifically for the educational market is generally disfavored and is unlikely to be considered a fair use. Additionally, courts tend to give greater protection to creative works; consequently, fair use applies more broadly to nonfiction, rather than fiction. Courts are usually more protective of art, music, poetry, feature films, and other creative works than they might be of nonfiction works.(emphasis added) — Source
Images certainly fall under the deserving of greater protection umbrella.
Factor Three:
This factor is easily overcome if the author substantially crops the Image, which would then probably make using the Image pointless.
Factor Four:
Effect on the market is perhaps more complicated than the other three factors. Fundamentally, this factor means that if you could have realistically purchased or licensed the copyrighted work, that fact weighs against a finding of fair use. To evaluate this factor, you may need to make a simple investigation of the market to determine if the work is reasonably available for purchase or licensing. …If your purpose is commercial, then adverse market effect may be easier to prove. Occasional quotations or photocopies may have no adverse market effects, but reproductions of entire software works and videos can make direct inroads on the potential markets for those works. — Source
If a reasonable substitute is available on wiki commons or a reasonably priced subscription site, there is not a chance in hell I will grant the exception.
Common Sense Application of the Test
I have never seen an article on Medium that would be made or broken by the inclusion of any particular Image. If it would be, it would be a poorly written article.
Why do writers throw hissy fits when I deny their requests? Because they believe that the Images in question will lead to clicks/reads, not because they believe they are essential to the subject matter of their articles.
Case closed.
Why Am I So Strict?
Because under Medium’s terms of service, which includes very well-written indemnification provisions that would shift any costs from Medium onto publication owners, my owner would be liable for and probably has deeper pockets than the writer and it is against him that the owner and Medium will enforce their rights.
This Is What Happened Two Days Ago
A writer submitted a story regarding the death of Mr. Big’s character on the recent incarnation of Sex in the City. The author used promotional images lifted off of the show’s website. The author took the position that it is fair to use any image from the website for that purpose because she was reviewing the show.
I wrote to the author:
The writer threw a hissy fit and appealed to Dr Mehmet Yildiz and submitted this unconvincing web post, which contains no discussion of the factor test or case law for the position that such is permissible.
Moreover, her story was not really a review of the show, which under the totality of the circumstances (fact pattern) would not have swayed me anyway, but rather was really an opinion piece that the show did well to have the character die because of the allegations against the actor of sexual misconduct. I doubt the copyright owner would consider that fair use of its image.
She left in a huff saying she would submit to a publication that understands the doctrine. Clearly, we do understand. We simply do not agree with her, both on the application of the law to her facts and from the perspective of proper publication and risk management points of view.
Had she been gracious, I would have offered her images off of despositphotos.com, to which I subscribe and with which I have no affiliation:
That picture would have accomplished her click-in motive. This next one would have been the most related to her story:
Takeaways
While Medium has a framework in place, under the Digital Millenium Copyright Act, to deal with claims of copyright infringement, if one defends against a takedown notice based upon fair use, that is unlikely to be resolved, through other than settlement, outside of court.
That is how complicated and delicate the balancing of the fair use factors is and why we are unlikely to ever place ourselves in the position of granting a fair use exception.
Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors to resolve fair use disputes, as discussed in detail below. It’s important to understand that these factors are only guidelines that courts are free to adapt to particular situations on a case‑by‑case basis. In other words, a judge has a great deal of freedom when making a fair use determination, so the outcome in any given case can be hard to predict. — Source
Writers, please, just use copyright-free or licensed images. Your article will be published quickly instead of wasting everyone’s time fighting a battle you likely will not win. It's for your own good. If you insist on asserting fair use, please be prepared to make a cogent argument, supported by case law or other reputable sources, under the law as outlined above.
In Rama I create, with soul-energy surging through my body, inspiring me and breathing wind into my sails,
