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I wanted to take a moment to discuss a concept you’ll often heard thrown around… it’s called Fair Use.  Now, before I go too deep — a few caveats.

  1. I am not a lawyer.
  2. Laws vary country to country.
  3. If you have questions, see a lawyer you trust.

Okay, with that out of the way, I wanted to talk a bit about fair use.  I’ve had several photographer friends try to justify to me that they can use copyrighted music in their slideshows.  That it’s acceptable.  Other times, the shoe is on the other foot… as those same photographers explain how their rights are being violated by websites.

Well… here’s a few things to think about.  The fair use concept is essentially a doctrine which provides situations where copyrighted works can be used without paying. It places reasonable restrictions on:

  1. The purpose and character of the use, including whether such use is of a 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 on the potential market for or value of the copyrighted work.

It is true that in a classroom situation you can use virtually any image you want for practice or class exercises. However, here is the problem: As soon as a student wants to start looking for a job and builds a portfolio, those images are being used for financial gain. If you are a student or emerging pro, you need to build work samples that help you get a job. Use images that you have the rights to (or that you have photographed).

Same holds true for music tracks.  I just turned down a job applicant who had copyrighted music on his demo reel.  He incorrectly thought that crediting the track was enough.  Talk about a huge potential financial risk if I brought him into my company. There are lots of alternative strategies for music licensing that are fair and easy.

The other clause that is often seen as a loophole is number four. People often think that because their project was small or personal that damage cannot be claimed. It is relatively easy for a copyright holder to claim damages or lost revenue. Even though they may not go after you, why take the chance?

As a photographer, you should respect the law and the welfare of your fellow photographers, musicians, and designers. For more on copyright and fair use doctrine, visit www.copyright.govwww.copyrightalliance.org or www.asmp.org/content/registration-counts.

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Join the conversation! 11 Comments

  1. Useful to know. Thank you for that.

    Reply
  2. Back in the late 1990′s I produced a series of educational videos that are still sold on Amazon today. One day I was at a local street fair and heard a musician whose music I thought would make a good background soundtrack. I told him what I wanted to do, and he said OK, so I bought some of his personally made CDs.

    When the videos were complete, I sent him a complimentary copy of each (If I remember right, I used his music in 4 out of the 52 videos we produced). A few days later he called me and demanded a whole bunch more money for using his music!

    I managed to remind him of our street conversation, and told him my market was too small to allow me to reproduce it with different music. He backed down and accepted the credit I had already given him, plus the fact that I had paid for his CDs (rather than stolen the music).

    I learned there and then not to rely on a verbal “go ahead”, and got all further music either from royalty free libraries, or with a signed release…

    Reply
  3. Great post, Richard. Thanks for sharing. Although I pity your job applicant who is now forever labeled “a huge potential financial risk”. Yes his ignorance cost him the job but does that mean he can’t change with the knowledge you imparted on him? Btw, I’m a pro musician and I should actually be the first to get mad at him. :)

    Reply
  4. Interesting indeed and what do you think about appropriation, copyright & photography. In the digital age, photographic copyright is fading fast. Remember the case with Shepard Fairey’s famous artwork of Obamas Hope and Mannie Garcia’s less-famous 2006 photo.

    Reply
  5. You know I’ve been wondering lately – is it possible to, instead of getting a written release get a video clip of the rights holder giving certain needed information and verbal permission – would this hold up should a legal dispute arise ? If we could do this it would be much easier to get without having to pull out the iphone and get them to tediously fill out a form.

    What would be required for this information wise?
    wouldn’t it be awesome of this started becoming acceptable for stock shots?

    Reply
    • When my son was in 4th grade he did a report on calcium carbonate and found a website with excellent sample photos. I insisted that he contact the photographer get permission to use. (He could use them under common fair use understanding.) He wrote, got permission and probably surprised the photographer. Today he is a musicologist with with clear respect for the creative works of others from an exercise as an 8 yr old.

      Reply
  6. Reblogged this on defigphotography and commented:
    This is very interesting information. All my newbie photography friends you should take a look at this information. Could potentially save you $$$$ in the long run.

    Reply

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About Richard Harrington

Richard Harrington is the founder of RHED Pixel, a visual communications company based in Washington, D.C. He is the Publisher of Photofocus and Creative Cloud User as well as an author on Lynda.com. Rich has authored several books including From Still to Motion, Understanding Photoshop, Professional Web Video, and Creating DSLR Video.

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