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The Myth of "Fair Use": No, You CAN'T Use That Without Permission

No, you can not take content from one site, copy it to your website, stick an outbound link on it, and think that is legally permissible  — particularly if your site is a commercial site (which, if you have ads on your blog or site or are promoting a commercial entity, you are, indeed, a commercial site).

It’s stealing, plain and simple.

NickMom  today (yes, again) were caught using a photo of blogger MamaDweeb‘s daughter without permission in a curated post (they have finally taken down the post). Amy explains this current situation.

In light of this particular discussion and issue, I’ve heard many people say including many, many bloggers that what NickMom did with the photo is considered “fair use” because the original photo was on the internet, on MamaDweeb’s site first.

This is a myth. Here’s the legal breakdown.

According to the US Copyright office, copyright is:

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.

So what is Fair Use?

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

  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
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

So if you grap a photo off the internet and use it without permission, you are violating copyright. The only exceptions are parody, quoting only excerpts, criticism, reproduction by a teacher or student for a lesson, or accidental exposure such as the news is filming an event that is held in front of copyrighted works. But even so, it’s best to get permission when you can. The copyright office says that as well:

When it is impracticable to obtain permission, you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use would apply to the situation.

Any questions?

This is a very simplified explanation of this issue; there is of course massive room for interpretation (like most laws). It’s been suggested that I should mention here that I am not an attorney. Using about forty different resources, including the copyright office itself, I came to the above conclusions. I’m also the first to admit that I’m particularly sensitive to this issue thanks to my own work being stolen and misused more than once. 

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