do you really want an answer? yes please bill to: Mr. Cubin Ny 14 Robert E. Lee St. Heritage, AL (whatever the zip code for Alabama is) (clearly I'm just substituting my own definition of fair use and wondering why the world isn't conforming to it, but I am actually curious what disqualifies this from the legitimate legal framework (so that I can pretend I'm an expert on twitter)) ok, but same disclaimers apply (me = lawyer; but not your lawyer; this isn't legal advice). Fair use is a crazy muddy gray area. what one "expert" in IP thinks is fair use, including judges in the 2nd and 9th circuits (which see more IP cases than probably all other circuits combined), another will think is clearly infringing. But here's the quick and dirty analysis. I. Fair use is a defense. That means it's only relevant if what you're doing is copyright infringement. Also keep in mind that fair use is primarily intended to balance two things so important that they're both protected in the Constitution - copyright law and free speech. So it's rarely easy and not really supposed to be. II. So was this infringement? Copyright gives the owner (photographer, his employer, or company that bought the rights) certain exclusive rights, including the rights to make copies and display them publicly, which is what is at issue here. Answer is pretty obvious. III. Assuming infringement took place, should the fair use defense apply? That's a fact-intensive question, considering these 4 factors: A. Purpose/chracter of the use B. Nature of the copyrighted work (the photo) C. Amount/substantiality of the work (photo) that was used relative to the whole D. Effect, if any, upon the market value of the work (photo) There's no magic formula. It's not a majority rule and the relative weight given to those factors can change from case to case (and judge to judge). In many cases, #4 trumps all to find no fair use, but in some cases, the first factor can seemingly end the analysis in favor of fair use. Just for fun, let's run through them here. A. Purpose/character of the use - there are some ways that you can use someone else's work that make it more likely that the use will be considered fair use. Transformative uses (changing the character of the original) are good examples. If what you've done with someone's work "contributes to the public knowledge" then it's likely fair use. Creative works are protected by copyright in order to encourage creative contributions to society. Also, some purposes have more leeway, like education, commentary (or parody) and news. Note that doesn't mean schools get to infringe on whatever copyright they want because they're schools. You can't make a hundred copies of a book and say "educational purposes!" and get out of jail free. But if a prof wants to show a few minutes of a video in class (infringement!) to illustrate a point, fair use would be their defense. Also, parody has a meaning. Using someone else's work to make a humorous work doesn't make it a parody. Here Not helpful. Picture copied/pasted for the same purpose the owner made of it. What might help? Using a couple pictures to comment upon baseball in some way. Taking an image and making it much different. Below is an example of a transformative use that audiences usually get wrong. B. Nature of the copyrighted work - i.e., how creative is the thing you copied? The bar for fair use is lower if the creativity involved is lower. But the bar for creativity sufficient for copyright protection is REALLY LOW. So this is rarely meaningful. Most copyrighted works in fair use cases are creative and entitled to copyright protection. Here Not helpful. Photographs are considered creative. C. Amount/substantiality of work used - did you use all or part of a work? An important part? Again, there's not a standard below which, you're free. A very small percentage can be substantial. My go-to example - use the first 5 notes of Satisfaction and see how your fair use defense does in court. The more of the work used or the more important the portion used, the less likely the use was fair use. Here the work is the photo. if the whole photo was copied, then this isn't helpful for finding fair use. 0/3 so far. Things are not trending well for fair use. D. Effect upon the market or value. If the infringement destroys or harms the value of the work (either by removing the mark or damaging the reputation or value), then it's almost certainly not going to be fair use. But if the use has no impact on the market of the original, then fair use is more likely. Here Less obvious than the others, but probably also not helpful or maybe neutral. Some companies make money by licensing images online. The fact that they're easy to find on google doesn't mean that they're free. Will others be less likely to pay to license photos if they know they can use them for free without threat? Um.