52 Responses

  1. Shirley
    Shirley July 27, 2014 at 8:38 pm | | Reply

    Hi There! My first time teaching Intro. to Visual Communication is quickly upon me and I am grateful to have come across your website. Two things: from just reading your graphic above, which is extremely helpful, I assume that I don’t need to ask your permission to use this in my community college class this fall. But, I thought I would ask. And say thanks. Thanks!

    ~Shirley

  2. Thomas MacEntee
    Thomas MacEntee July 29, 2014 at 5:44 pm | | Reply

    There are some inaccuracies in the flowchart especially the advice on using an image if the creator has died. Unless the photographer created the image as a work for hire (in which case the newspaper or other venue holds the copyright), the copyright could still be held by the creator’s heirs – up to 70 years after the death of the creator. See http://www.copyright.gov/help/faq/faq-duration.html.

    A good resource for navigating the intricacies of US Copyright law is the Digital Copyright Slider developed by the American Library Association : http://librarycopyright.net/resources/digitalslider/

  3. Maartje van den Bosch
    Maartje van den Bosch July 31, 2014 at 12:57 pm | | Reply

    I was so pleased discovering this scheme today. It might be helpfull explaining my colleagues the do’s and dont’s in using images. Question: If my manager will agree with me this might be usefull information on the intranet, do you allow me sharing this scheme on this businessplatform? And is it avilable in other languages as well? We might consider it having translated in the languages spoken at our OPCO’s, to be sure everybody understands the rules very well? And of course w’ll mention your site as the source.

  4. Mark F. Simchock
    Mark F. Simchock August 5, 2014 at 1:14 pm | | Reply

    Thanks Curtis.

    This might sound funny / ironic / snarky but it’s not. It’s a legit question:

    What’s are your feelings on using the image / chart you created and/or the contents there of?

    Would a link back to you / this article be sufficient?

    Thanks again,
    mfs

    1. Keiko
      Keiko August 29, 2014 at 10:53 pm | | Reply

      I’m also curious about what your permission/usage/attribution rights are for this graphic? If we wanted to use this in a blog post – may we, or must we first ask permission? (The reason I ask, I came to this by way of it being posted in a MediaBistro GalleyCat blog post).

  5. David
    David August 5, 2014 at 1:53 pm | | Reply

    Thank you for creating this guide, it will go a long way in making clear to people why the images they copy of the internet and send me for a magazine cannot be used.
    There is one thing I’d like to see clarified. If you take a picture yourself and it is your own original idea it still can be that you cannot use it if it contains elements that are covered by related rights or personal rights. For example:
    1. Privacy: if I take a picture that has other people on it they might have cause for prohibiting publication of the picture because it could violate their right of privacy;
    2. Related rights: if I take a picture that has a signature building by an architect as the background and my picture changes the appearance of the building the architect might prohibiting publication, because it violates his artist’s rights.

  6. Ed McNichol
    Ed McNichol August 5, 2014 at 2:59 pm | | Reply

    You spelled brochure as brocure

  7. Pete
    Pete August 5, 2014 at 3:05 pm | | Reply

    Why are there two exit points from the first No? If you go down instead of right to Ask Yourself the Fair Use Questions the graph doesn’t make any sense. I also suggest adding a down arrow below the Ask Yourself the Fair Use Questions blob to make it more clear to advance to the questions.

  8. Sandy Shepard
    Sandy Shepard August 5, 2014 at 3:18 pm | | Reply

    One thing that is not addressed is the right of the “subject of” the photo. Folks often think they can use a photo if they (for sample) purchase it on Getty, but their EULA very specifically states it only gives permission from the photographer…. Not the subject. Like the flow chart idea though ;) Also, to be really specific, you can’t be “inspired by” a (c) work either (re your vector on “did you create it”)

  9. Joe Reimers
    Joe Reimers August 5, 2014 at 4:04 pm | | Reply

    At a seminar for librarians working with digital objects, it was *strongly* recommended to us that fair use be the last resort rather than the first. Getting permission is always the most preferable course of action. There are two problems with fair use: the first is that it is always an infringement on another’s copyright, albeit a non-actionable infringement. The second is that it is never automatic: each fair use claim pursued must ultimately be decided by a judge, weighing the relative merits of the specific case and use. That gets messy. It’s better to ask permission first, and only when that falls flat, IF you do your due diligence and determine there is a high probability of prevailing on a fair use claim, do you go that route.

    1. Nancy Sims
      Nancy Sims August 6, 2014 at 8:12 pm | | Reply

      Wow, that wasn’t great information. Fair use isn’t infringement. Permission is nice to have, though – it does make everything easier.

    2. Chris
      Chris August 9, 2014 at 1:47 pm | | Reply

      Actually, yes it is. Fair use is a defense, not an excuse from obtaining permission.

    3. Arno
      Arno August 27, 2014 at 1:27 am | | Reply

      Fair use, if anything, is subjective, and infringement.
      Hence the “interference” of a judge in implied “fair use” cases brought to court.

  10. David Polston
    David Polston August 5, 2014 at 5:00 pm | | Reply

    An interesting conundrum just occurred to me. I’d like to share this flowchart with some of my clients. Under what license is the flowchart available? Is it copyrighted? Is it CC? Is it PD? I’d genuinely like to know.

    Thanks,
    Dave

  11. Andy
    Andy August 5, 2014 at 5:42 pm | | Reply

    The first NO after “did you create the image yourself” has two lines coming out of it which is confusing, and the “Will you be using it for commercial or personal gain?” question has no NO option.
    Also, “purpse” is misspelled in the second fair use question.

  12. David Schrag
    David Schrag August 5, 2014 at 6:35 pm | | Reply

    Found a few typos. In the second Fair Use question, it should be “purpose,” not “purpse.” And after “was the picture you created an original idea,” the choices are Yes, No, and Not. I believe the third choice should be “Not Sure.” In the “Yes” box directly under “Ethics” in the title, it should be “brochure,” not “brocure.” There may be other typos that I haven’t found — you might want to run a spell-check.

    I think it would be interesting for you to address the specific question of using clearly copyrighted images in Facebook memes and other “viral” web sites (e.g. Buzzfeed). Does posting something on Facebook count as using the image “sparingly?” Does adding a humorous caption to a still from a movie create a new purpose or meaning? Not that anyone is going to get sued for putting Gene Wilder’s picture on their Facebook feed, but it would be good to know whether it’s legal.

  13. Jack Reznicki
    Jack Reznicki August 5, 2014 at 7:50 pm | | Reply

    Wow, There is a lot of completely wrong and misleading information about copyright in this workflow. I’ve been a commercial photographer for over 30 years, I do a lot of lecturing, and writing with a copyright litigator, have been an expert witness in a Federal copyright case, and have sued for infringement myself. Following the “advise” you’re giving here can get people on a lot of trouble. Like using images you find on social media, or being able to usie anything for public interest for news (I can tell you many news organizations that have paid big bucks for running shots they didn’t have permission to use), not to mention orphan works that was already pointed out. I’ll be showing this in my graduate class as an example of bad information on the net.
    Personal or commercial gain is not a factor for infringement, it might be for the determining the damages.
    The 70 years you state is the law, passed by Congress. Its not going to change very easily. It’s lifetime plus 70 years after death, but for a corporation it’s 90 years.
    Copyright is baked right into the Constitution itself, so changes are not that fluid as you imply.

    I commend you for trying to help people with these confusing issue, but frankly, this is a mess.

    1. Graham Trott
      Graham Trott August 6, 2014 at 8:41 am | | Reply

      Jack is correct. This simply adds to the misinformation about copyright in photographs. Your chart could be much simpler: Did you take the photo? Yes: go ahead – it’s your copyright. No? Do not use it anywhere without the author’s (copyright holder) permission – that would be theft.
      If you want to help people understand the law on copyright, make sure you know exactly what it is. Here in the UK it might have variations over the US – one being that in the US there is a much higher penalty for infringement, whereas the UK law only allows for reasonable compensation as per what would have been charged had permission been sought in the first place. Unless flagrancy is proved. It is a minefield, and image theft is rife, but copyright holders are fighting back.
      http://www.copyrightservice.co.uk/copyright/uk_law_summary

      1. Bradley Dilger
        Bradley Dilger August 8, 2014 at 11:19 pm | | Reply

        In the USA you do NOT need permission to use copyrighted works, including photos, if the use is fair. That’s the point of fair use.

        1. Liz Brooks, JD, IBCLC, FILCA
          Liz Brooks, JD, IBCLC, FILCA August 28, 2014 at 10:50 am | | Reply

          This is splitting a hair, but it is an important one. Fair use is a *defense* to one’s acknowledged use, without prior permission, of copyrighted material. You’re saying, “Yup, this is a copyrighted photo [or whatever]. But I’m gonna use it anyway, and I’m not asking permission of the copyright holder or anyone else. So there.”

          But here is the deal. Just because YOU think it is “fair use” doesn’t make it so. That is for the courts to decide, and there are reams of decision in legal cases that have examined this concept.

          One uses an item under the fair use theory under risk of being sued for having guessed (or decided) wrongly.

          The infographic author’s admonition to seek permission whenever in doubt is excellent.

          The cool thing is that seeking permission is NOT a big-deal-special-forms-hire-a-lawyer kind of thing. Just send an email! Keep a copy of the reply granting permission …

    2. Chris
      Chris August 9, 2014 at 1:58 pm | | Reply

      Thank you for writing this, Jack. I, too, am a professional photographer, and writer as well, and I’ve studied copyright during my 20-year career just to ensure I’m always knowledgeable about the issues that affect my business. I saw this posted on a friend’s Facebook page this morning and it made me cringe to see some of these ideas baked into a nice-looking design that people would believe. Like you, I applaud the effort here — the chart looks great, and is a wonderful idea; but I’d like to see it adjusted after some consultation with an intellectual property attorney.

  14. Jill Meadows
    Jill Meadows August 5, 2014 at 8:28 pm | | Reply

    Love this chart! Wondering if you have this as a poster. It was a little hard to read on the computer due to some of the colored text and having to blow it up so large.

    Thanks.

  15. Lindsay
    Lindsay August 5, 2014 at 8:49 pm | | Reply

    Hey Curtis,

    Thanks for this great chart! Would it be OK if we used it in a post on our blog (freelancersunion.org/blog)? Lots of our freelance members (especially photographers, graphic designers) want to be protected from copyright infringement, so we’re trying to spread the message.

    Thanks!

  16. Anne
    Anne August 5, 2014 at 9:02 pm | | Reply

    Hi, Appreciate what you’re trying to do here. And maybe you know this, so for your readers who may mistake a few things in your chart…

    There’s a problem with how you’ve portrayed fair use. First of all, it’s not law. It’s doctrine. Meaning, it’s subject to interpretation each and every time a case goes to court. And a copyright owner could sue anyone who infringes on their work any time they want, period. Fair use is not meant to be an easy out for people to use copyrighted work, for any reason. Plus, it’s usually using a portion of the work that will get you “pass” (and if you have more than half the factors in your favor), but that’s not a guarantee. Good info here: http://fairuse.stanford.edu/overview/fair-use/

    In the case of the educator who wants to use something for class… generally speaking, showing it in class might be fair use, but photocopying 100 copies of an entire work every semester for 10 years, probably not. The value of the work is being diminished because the author is losing out on that income.

    Also, if you take a picture of something or someone that is protected by trademark, publicity rights, or privacy rights, you cannot just do whatever you want with it (i.e., use it for commercial purposes). So your “yes” at the top left has to have some caveats.

    I am not a lawyer and this is not legal advice :)

    People should start by assuming they have the rights to nothing if they didn’t create it. Get permissions and model/property releases for everyone & everything. Or use licensed, creative commons, or public domain. One generally doesn’t “purchase” an image, one purchases a license to use it in a particular way. One must adhere to the license terms. Even microstock generally has restrictions. As does creative commons. Read the license!

    By the way, the federal government cannot hold copyright, but sometimes copyrighted work is used in government materials, so you still have to be careful.

    Cheers!
    Anne

    (PS: a couple typos in case you want to fix: purpose in red; public in yellow are both missing letters)

  17. Chaz Reynolds
    Chaz Reynolds August 5, 2014 at 9:09 pm | | Reply

    The guide states that it’s “usually” safe to use an image if it’s just being hung on a wall for personal use. Can you please point me to the specifics of when an image can be used? I recently attempted to order a print of an image downloaded from a website (for personal use at home – to hang on a wall), but was denied because the image was deemed copyrighted material.

    Thanks!

  18. Christine
    Christine August 5, 2014 at 9:40 pm | | Reply

    What if you take an image from a blog, but the blog poster doesn’t have the copyright to the original image? Just occurred to me as I’m looking for pictures of small towns to post on a project’s website.

  19. DeAnn Redfield
    DeAnn Redfield August 5, 2014 at 11:01 pm | | Reply

    At our school, we should be above reproach. I try to teach all stakeholders the value of knowing correct procedure in using copyrighted materials. This will be a valuable tool. To that end, may I have permission to print a copy, or at least use a credited copy in a presentation?

  20. Paul Hood
    Paul Hood August 5, 2014 at 11:13 pm | | Reply

    Your flow chart states that it is OK to copy an image for personal use to hang on your wall. This is not even close to true. For centuries artists have created images for sale: for personal use to hang on your wall. The internet, among other things, is a huge marketplace to sell such works, and the displayed images are supplied only as an example to sell a print or an original. I know that you’re trying to help, but this is exactly the kind of glaring error which furthers ignorance on the subject and can contribute to people being sued.

  21. Mr Hogwallop
    Mr Hogwallop August 6, 2014 at 8:47 am | | Reply

    There are quite a few typos in the chart and many statements that are not exactly accurate. If you go over to the Petapeixel site and look at the comments you will see what I mean. There is an IP attorney who you may want to talk to regarding the accuracy of your statements.

  22. Lind
    Lind August 6, 2014 at 12:27 pm | | Reply

    You have so many inaccuracies
    on here you are going to get someone seriously in trouble. I would ditch this IMMEDIATELY and contact a lawyer before spreading this, getting yourself involved and possibly in the middle of your own lawsuit.

  23. John
    John August 6, 2014 at 4:13 pm | | Reply

    Accuracy or inaccuracy of the “Fair Use” section notwithstanding, you might want to add something on there stating that Fair Use is an American Copyright concept, and does not exist in other countries.

    There is no “Fair Use” under English Copyright law, for example. We have “Fair dealing” which is a very different thing.

  24. Charles Tan
    Charles Tan August 6, 2014 at 5:03 pm | | Reply

    If you’re transforming or repurposing an image, that’s derivative work, and will need permission. There are corner cases where this can fall under Fair Use, but that’s not always (or even often) the case.

  25. Jain Lemos
    Jain Lemos August 6, 2014 at 6:22 pm | | Reply

    Thank you for your attempt to create a “Can I Use that Picture?” infographic. The answer is very simple. If you didn’t take the picture yourself the answer is NO (it doesn’t matter whose camera it is!. You need *permission* from the person who owns the copyright.

    In some reuse applications you may not have to pay a licensing fee but you still need permission. Some copyright owners automatically grant free use to their images and if they do, those usage parameters will be clearly stated where you find the image. However, if you don’t immediately understand that reuse is automatically granted, you need to contact the owner directly with your request.

    For reuse of images you find online, use auto-licensing applications such as Permission Machine. Please be fair to your fellow creators, protect yourself from infringement suits and obtain a legal license!

    1. Bradley Dilger
      Bradley Dilger August 8, 2014 at 11:27 pm | | Reply

      This is a radical oversimplification of copyright law. There are many cases where permission is not necessary, starting with fair use and extending to a wide range of other circumstances. Not all photography is copyrighted!

  26. Nancy Sims
    Nancy Sims August 6, 2014 at 8:16 pm | | Reply

    Lots of responses today, I guess because it’s been shared on some high-profile sites. Several of my friends shared it, too, and the inaccuracies & missing information concerned me enough (especially with all the library folks resharing it uncritically), that I did a more detailed analysis over on my blog (http://z.umn.edu/flowchart2). There is some great stuff here, especially your engagement with the community expectations and ethical points of social media sharing, but I wouldn’t suggest anyone use this for true workflow (personal or at work) management.

    1. Robert Stewart
      Robert Stewart August 7, 2014 at 1:08 am | | Reply

      Agreed. Before posting something like this, I would check with the best copyright law firm in the country and find out how many glaring errors, bad advice, and other mistakes should have been left off this chart.

  27. Helen Murdoch
    Helen Murdoch August 13, 2014 at 6:57 am | | Reply

    Thank you for this Curtis. You’ve certainly provoked some conversations! As a rough guide and to get people thinking about whether they can or can’t use an image, it’s a great tool. Just the headline will, hopefully, make folk stop and think. Well done, and now that you have the “Health Warning”, please keep ‘em coming.

  28. Tim Easley
    Tim Easley August 15, 2014 at 11:09 am | | Reply

    I have a huge problem with the part of your flow chart that says it’s alright to print something to hang on your wall. This is immensely fallacious advice. There are a lot of people around the world who made a large part of their income from selling prints of their artwork or photography. It is *not* alright to print their work to put on your wall. Personally, and I think a lot of people would agree with me here, I wouldn’t mind someone printing my work as a thumbnail or small “clipping” to put on a mood board or an inspiration board, which may have been what you meant. But your advice is worded in such a way as it advises the reader that it’s OK to download and print artwork to hang on your wall. It’s most definitely not.

  29. Jim
    Jim September 2, 2014 at 7:28 pm | | Reply

    One thing people never think about, is the print or copy shop. Say you’re using an image for a nonprofit project, and now need copies. The print or copy shop make those copies for profit. They sell those copies back to you. Thus, ethical print and copy shops won’t reproduce these kinds of jobs.

  30. Terri
    Terri October 2, 2014 at 10:51 pm | | Reply

    Hi. A local High School Yearbook has taken my photos off my FB & published my photos in there yearbook. I sent an e mail asking for my pics not to be use in the 2014 yearbook. In 2013’s yearbook I found 30 of my photos used. In 2012 I found four photos. The school never asked me if they could use my photos. Can anything be done about the past years?

  31. Kevin J
    Kevin J October 16, 2014 at 8:37 pm | | Reply

    Question here, although I believe the answer is no…I am designing an architect’s website and want to include pictures of his work. My question is whether using copyrighted photos would be illegal in this case, as they are his designs and would not be used for commercial reasons. Of course, they would help to contribute to making monetary gains and this leads me to believe I can’t use them. Am I right??

  32. Brad
    Brad October 17, 2014 at 2:52 am | | Reply

    Curtis, I really liked your graphic but I have a situation that doesn’t quite fit.

    I was an extra in a movie PLAYING a photographer. The camera I was given to use was older, but fully functional. To break up the tedium of almost endless takes, I used my own memory card to take pictures. A lot are pure garbage but some were real gems showing the famous director at work evaluating his famous actors. Others were of my perspective acting with in the scene.

    I’ve taken some of the photos and performed some extensive editing to them in Photoshop — crop, siloing the areas of interest, some airbrushing and other art effects — and would like to show them at a local art show.

    I’m not planning on offering these for sale, just showing. Thanks in advance for your opinion.

  33. Robert Cherny
    Robert Cherny October 20, 2014 at 8:06 pm | | Reply

    How much of this applies to videos posted on sites like YouTube? There is a growing desire to use web videos in meetings and conventions. One suggestion is that if you stream the video directly to the screen that is “fair use”, but that if you embed the video in a presentation, that is “publishing” and is not “fair use”. What are your thoughts?

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