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August 21, 2014

Image Use: Is it Fair Use?

by Donna Huber

I was going to discuss interviews today, but I ran across an article yesterday about using images properly on blogs. Most of it was information I have read elsewhere until I got to the section on Fair Use. It gave me pause. It has me second guessing my use of cover images and author photos.

I encourage all of you to read the article on HubPages: A Guide to Proper Image Use.

But I want to further tease out the use of cover images and author photos on our blogs. Does the use fall under the Fair Use clause of the copyright law?

According to the article, and probably most people's understanding of Fair Use, one component of whether the use is infringment or fair use is when used in the following manner,

"Only use copyrighted work to contribute something important and original to the world, typically in the form of art, criticism, reviews, education, or reporting."

For most book bloggers, we use cover images as part of our reviews and thus the use is an "allowed" use of copyrighted material. Interviews and guest posts or other articles could be considered "reporting" and, therefore, an author photo could be used. Just because the use is exempt it does not mean you do not attribute the work. I know I have been lax on attributing my covers and the author photos. Even when the author or publisher provides the material I should still be giving proper credit. For book covers it is the cover designer which could be tricky to determine, but typically it is included on the copyright page of the book. I know not all ARCs come with a completed copyright page and thus making it more difficult. I recommend making the best effort and include a link to where online you got the cover (for me, I get most of the covers from Goodreads.com) and when furnished by the author or publisher to make a note of that. (However, "best effort" won't necessary stand up in court.)

So far so good, right? Nothing that I haven't heard before. So what gave me pause? The next point in the article:

"Are not monetized (e.g. are not selling something, featuring ads, etc.)."

Do you run Adwords on your blog? What about the use of affiliate links? I use both and they do show up in my review posts. Though I do make a few dollars throughout the year, I don't think of Girl Who Reads as a commercial venture. The funds are rolled back into running the blog - giveaways, paying for the domain name, etc. And I'm sure at the end of year that I take a loss. Under IRS rules my blog would be considered a hobby and not a business (see Hobby Loss Rule). Also, I have wondered about getting non-profit status for the blog. Most literary magazine have non-profit status since they support the Arts. It requires a board of trustees and some legal documents, so I haven't pursued it (maybe in my retirement).

However, if it doesn't matter about being a commercial venture or profitable, but only that it is monetized, then I do not have the right under Fair Use to use book covers or author photos without the expressed permission of the author.

So what to do?

I could possibly take a picture of my own copy of the book, but I often read ebooks and electronic galleys so nothing to take a picture of it.

Ask permission to use the images. For the author photos I use, they are almost always sent by the author so I assume permission. On the odd chance that a photo wasn't provided or I'm writing some other article, then I should either exclude it or seek permission. Now book covers might be a bit trickier. I'm thinking of putting a stipulation in my review policy to the effect that the request for a review gives permission to use the book cover in said review and for advertising said review.

But what about books I got from the library or I purchased myself and then reviewed? Or galleys from Netgalley - the publishers don't read my review policy. As an affiliate, Amazon has coding I can use that includes the cover. Is that allowed under Fair Use as the link will contain my affiliate code?

I dare say that most authors and publishers have no problem with using the cover image in a review or other blog post. But we also know that sometimes authors behave badly when a review is negative or one they considered not glowing enough. Then what?

Reviews are subjective and while you may think you gave it a positive review an author may not see it that way. The fourth point the article gives for allowance under Fair Use,

"Do not use copyrighted work in a manner that would compromise the copyright holder's ability to earn from it."

A negative review could be argued that it does compromise the copyright holder's ability to earn. But what about the okay reviews? You know the ones where you liked the book, but it wasn't stellar or particularly a standout. Could you get in hot water? Perhaps. I'm not a lawyer and I'm not sure what precedent exists on the question. However, there have been a few cases of suits over negative reviews of businesses and I could see where an author could think this was opportunity to remove a negative review.

I know many authors read my weekly tips posts and I would love to hear your opinion on bloggers using book covers and author photos on their posts. Do you consider it an infringement on your copyright for bloggers to use cover images in their reviews? What about other posts - like release announcements, interviews, guest posts, general news?


Donna is an avid reader and natural encourager. She is the founder of Girl Who Reads and the author of how-to marketing book Secrets to a Successful Blog Tour. She reads most genres (NO horror or erotica), but her favorite books are psychological thrillers and stories that highlight the survival of the human spirit against unbelievable circumstances.


5 comments:

  1. This comment has been removed by the author.

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  2. As a writer who is also a photographer, I think the theme of your article is very important. Like any artist, photographers expect proper permissions and attributions to be paid for their work and to find their images used on covers or in blog posts without that is as upsetting as it would be for an author to find their book being sold or used without attribution or permission.

    Despite the fact that photographs are copyrighted, it's true that once they're up on the internet, it's very easy for people to copy and download them for their own use -- and often without permission! I've found my pics on blogs, articles, etc., often without attribution, and have had to contact people to sort out what to do about that. Usually if it's just a blog post, I allow them to use it free-of-charge, but expect credit and a link back to my photography site... which, usually, so chagrined to have been found out, they're more than happy to do! :) .

    However, that doesn't make it fair -- or legal -- to use work in the first place without getting permission. Particularly because it's very easy to find out who a photographer is by using Google Images and inputting a photograph to get all the necessary information. Take-downs and Cease and Desist orders from angry photographers are not unexpected, and in some cases, have resulted in legal proceedings. No one wants that!

    In fact, as a journalistic writer as well, we're always instructed that, unless something is in common use (i.e. on Wilkimedia Commons) or you've gotten expressed permission from the photographer, images cannot be used for public purpose (Huff Post won't allow it). Too many potential violations and the liability for a site is too high to be lax about that.

    So the most basic tenet for any use, including book covers or blog articles, is to make sure you have all necessary use permissions from the photographer and ALWAYS attribute the work (typically with a link). In the extremely rare case where it is impossible to find the photographer's name or what the legal permissions are, you can take the chance, but be aware that you could get a take-down or cease & desist... and the last thing you want is to find out is that your fabulous book cover is unusable after you've already published your book!

    As for using using cover images in reviews, I think once a cover has been legally established (and if it's being used for a published book, one assumes it has!), it's fair game when the book is being reviewed, good or bad, and absolutely can be used in tandem with the review on a blog post. When the photographer gives permission for a book cover use, it comes without any restriction based on reviews -- which neither they nor the author can control.

    Thanks for a great piece, Donna!

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  3. I feel that an author puts their cover image and author picture into the public domain when they publish their book and it should be allowed to use with reviews, good and bad ones.

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  4. That is a very interesting comment about not using copyrighted material in a way that would compromise the copyright holder's ability to earn from it. Strictly speaking, that would mean you couldn't post a critical review of something if you featured the copy or quoted from it.
    I've run into an interesting variation of this problem. I like to put up the beginning of a poem (not mine) with a link to where the whole poem can be read, but on one occasion when I mentioned this to someone who worked for an authors' association she said the line was very blurry as to how much of a work you could quote without specific permission. She wasn't even prepared to say one line would be ok. (I'm sure it would, but it shows how messy the whole situation is).

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