What’s Wrong with This Picture: Using Copyrighted Photos Online

By Carolyn Wimbly Martin and Ethan Barr

Barb, a vegetarian nutritionist with a blog, decides she wants a photo of sprawling farmland at the header of her most recent post. Searching Google Images, she finds such a photo of an organic peanut farm, albeit with a group of hardworking nut harvesters at the bottom of the photograph. Seemingly innocuously, she saves the file and posts only the farmland portion of the photo at the top of the page, cutting out the harvesters. When the original photographer Rick (coincidentally an avid reader of her blog) notices his work, he contacts his attorney for some advice and sends Barb a subsequent cease-and-desist notice. Barb is confused, wondering why she received such backlash for using something she simply copied and pasted.

This is just one example of the nexus between photograph manipulation and copyright law, and different situations evoke different sections of the law. Two areas of copyright law play a major role in the rights of photographers: derivative works and transformative use.

Derivative Works

Derivative works are new creative works based on one or more preexisting works, like a Broadway play based on a film, or a new edition of a previously published book with revisions. Copyright owners have the exclusive right to authorize the creation of derivative works. If a third party does not receive permission from the owner of the copyright in the prior work, he or she may be subject to copyright infringement liability. More importantly, the third-party work is only protectable as to its additions, meaning he or she may copyright anything added to the original work. Courts vary in their interpretation of protectable additions, ranging from requiring “substantial variation” to “more than a mere copy.”

Let us return to Barb. Her removal of a portion of the existing photograph did not create a derivative work because she added nothing to the original image. Instead, her most advisable course of action would have been to contact the owner of the copyright (Rick) and get his express permission to use the photograph on her page.

On the other hand, if she added new material to Rick’s copyrighted photograph rather than removing it, using, for example, Photoshop effects or portions of her own photographs, the path is slightly different. She would still need permission from Rick to create a derivative work, but the default rule is that she would own copyright in any new original material. In some jurisdictions, two parties may alter that rule via contract. ABS Entm't, Inc. v. CBS Corp., 900 F.3d 1113 (9th Cir. 2018); Schrock v. Learning Curve Int'l, Inc., 586 F.3d 513 (7th Cir. 2009).

Additionally, even if there is an agreement in place, the content that one adds to another individual’s work may not be protected via copyright. Although Barb may avoid infringement liability, an original work of authorship is only protectable so far as its elements exhibit a sufficient amount of creativity. That is, she may not receive copyright protection for using one fish-eye lens filter on an existing image.

When adding elements of a photographer’s copyrighted work to one’s own work, like imposing a photo of an interior design setup on a photo of a dollhouse, permission from the original copyright owner is also required. If the addition involves a person, there are different tort law implications. For example, a court awarded Muhammad Ali an injunction against Playgirl Magazine for placing his face on a nude model. Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y. 1978). The nuances of privacy law are numerous, and we will not delve into their complexities for purposes of this discussion.

Transformative Use

The legal doctrine of fair use was established to allow individuals to freely exploit copyrighted works without the express permission of copyright owners, such as in instances of educational use or parody. If the use of a copyrighted work is deemed sufficiently transformative, it generally tips the scale in favor of fair use, but the standard remains unclear primarily because the test is so fact specific.

For example, posting machine-readable texts online where users can only see “snippets” instead of entire dictionaries, cookbooks, and short poems has been considered transformative use. Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015). On the other end of the spectrum, creators of trivia games based on copyrighted works like television shows have had minimal success arguing transformative use. Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998).

Even though the standard may be vague, the blog example is more straightforward—it is likely that a judge would not find a simple snippet of the farmland photo transformative. Despite clipping certain portions of the photo, Barb has neither created something new nor “transformed” the photo into a work with a use distinguishable from the original.

By adding new elements to the photograph, Barb may have a stronger argument in favor of transformative use. If she has added significantly new material, such as removing the entire photo background and incorporating substantial portions into a collage, she may claim fair use because she has altered its meaning. See generally Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006).

Furthermore, if Barb has transformed the purpose of the original work into something completely new, she may be able to argue fair use. For example, if she decided to recreate Rick’s nut harvester photograph by replacing the farmers with cartoon livestock celebrating vegetarianism, she may be able to argue that the purpose was transformed into a parody. See generally Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. 1998).

Although transformative use is a legitimate argument in the context of fair use, it speaks to only one of the elements of fair use under the Copyright Act. It does not guarantee that a third party will be insulated entirely from copyright infringement liability. This necessitates the importance of an assessment by an attorney with a thorough knowledge of copyright law.

In summary

If there is anything to glean from the law surrounding the use of copyrighted photographs, it is that contracts are crucial. Express permission can avoid infringement, and a well-drafted contract between you and the copyright owner can make all the difference.

Evidence of an agreement may evade liability after posting someone else’s work in your blog or newsletter, and a social media post would pass the same test. Many social media platforms allow users to police content by filing Digital Millennium Copyright Act (DMCA) takedown notices of posts they believe are infringing their copyrights or other intellectual property. Most platforms allow you to appeal the notice but even if successful, this delay could be costly. Attaching a notice of copyright to the image and crediting the owner could also mitigate this issue if the other elements of fair use can be shown.

When editing or exploiting a professional photographer’s work for your own commercial or marketing benefit, it is important to have a formal contract in place. More importantly, it is prudent to contact an attorney to draft the agreement, including appropriate clauses regarding your right to create derivative works and ensuring you are properly shielded from infringement liability. L&L is happy to help you navigate the complexities of copyright law and draft such agreements.

Similarly, if you believe someone is improperly displaying an edited version of your photograph on the Internet, feel free to contact L&L for an infringement analysis.