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Is it fair use? Ask before you report a photo.

Four questions, one for each factor the statute names, framed around photographs. You finish with a dated note of your reasoning.

How to use it
Open
The page using your photo, to see exactly how it is used
Answer
Four questions, one per factor in 17 U.S.C. § 107
Keep
The dated note at the end, with your records
Sent to us
Nothing. It all runs in your browser.

  1. § 107(1)

    Factor 1 of 4

    What is the photo doing on their page?

    The purpose and character of the use: whether it is commercial, and whether it turns your photograph into something with a new meaning or message.

  2. § 107(2)

    Factor 2 of 4

    What kind of photograph is it?

    The nature of the work. Creative choices — framing, light, timing, staging — are protected more strongly than a purely factual record.

  3. § 107(3)

    Factor 3 of 4

    How much of the photo did they use?

    The amount and substantiality of what was taken. With photographs, using the whole image is the norm, which is why this factor usually runs against the user.

  4. § 107(4)

    Factor 4 of 4

    Does it take the place of a license or a sale?

    The effect on the market for the photo, including licensing. Courts tend to give this factor the most weight.

Why it matters

You have to consider it, not win it.

That difference is what keeps an honest mistake from turning into a claim against you.

Every notice says you believe in good faith that the use is not authorized by you, your agent or the law. Fair use is the law allowing some uses without permission, and Lenz v. Universal (9th Cir. 2015) held that a sender must weigh it first.

Send one without weighing it and 17 U.S.C. § 512(f) comes into play: liability for damages, costs and fees after a knowing misrepresentation, against “any person”, agents included.

How we apply it

A page cannot be approved for filing until a written fair-use note is on it. The software refuses the approval otherwise.

Examples

How the factors tend to fall for photos.

Tendencies, not rulings. Any of these can turn on facts that are not shown here.

Another shop shows your product shot on its own listingNot fair use. A commercial use of the whole image, doing the job it was made for.
A blog uses your landscape as a headerSeldom fair use. Decorating a page does not transform the photograph.
An account reposts your photo and credits youNot fair use because of the credit. Naming you is polite; it is not permission.
A critic reproduces your photo to review your showOften fair use. The comment is about the image itself.
A search engine shows a small thumbnail that links to youOften fair use. Courts have been lenient with search thumbnails.
A news report about you uses a photo you took of the eventCould go either way. It turns on whether the photo is the story or only illustrates it.

Questions

Fair use and photographs.

The copy is exact. Why think about fair use at all?

Because the notice states that the use is not authorized by you, your agent "or the law", and fair use is part of the law. In Lenz v. Universal the Ninth Circuit said a sender must consider it before sending. You have to consider it honestly; you do not have to be right.

Can software tell me whether it is fair use?

No, and distrust any that says it can. A court weighs the four factors together, and they often point different ways. This check gives your thinking a structure and leaves a dated record that you did it.

They put my name under it. Does that count?

It does not. Credit is not one of the four factors. A whole photograph with your name beneath it is still a whole photograph used without your permission.

They cropped it or added a filter. Does that help them?

Seldom. A crop or a filter leaves the substance of the photograph in place, and neither adds the new meaning or purpose the first factor is looking for.

What does § 512(f) have to do with it?

It makes anyone who knowingly and materially misrepresents that something infringes liable for the damages, costs and fees that follow. It applies to "any person", agents included, which is why every page in a matter carries a fair-use note before it can be filed.

Does this apply outside the United States?

The four factors come from § 107 of the US Copyright Act and govern US notices. Other countries have their own exceptions, such as fair dealing in the UK and Canada, which work differently and are usually narrower.

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See where your photo has been posted.

Paste the address of your photo and the search opens on the homepage, where you can also upload the file. Free, and no account.

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