Fair Use

Before you proceed any further it is important to make sure that the other person or website cannot claim something called "Fair Use". In certain instances, a website may use your photo under the "Fair Use" clause. To understand more about "Fair Use", we have provided a full explanation below. We have even provided a simple check list to follow. Please note that in all instances of fair use, they may not alter your original work (including adding their own watermark) and they must provide credit to the original artist. 99 percent of issues where you found your photo on someone else's website do NOT fall under "Fair Use".

What does the US Copyright Office say that "Fair Use" is, and why is this important? Sometimes an offending website will claim that they are using your copyrighted work under "Fair Use". Meaning that you may own the copyright, but I might be able to reference it in certain circumstance. Sometimes they will even refer it back to the original copyright owner saying where they got it from. But this act alone does not signify "Fair Use".

Below is a direct copy and paste from the Copyright.gov website outlining a description what "Fair Use" is.

Here is a checklist for trying to determine if the infringing party has any claims to "Fair Use". It is put out by Columbia University. Please note in the checklist that Entertainment is not an excuse for "Fair Use". This is the number one claim by the uneducated infringer.


One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

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
The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way authors have expressed themselves. It does not extend to any ideas, systems, or factual information conveyed in a work.

The safest course is to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

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. The Copyright Office can neither determine whether a particular use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.