Another flowchart deconstruction

New flowchart flying around Facebook and Twitter this morning purporting to answer the “Can I Use That Picture?” question. (Here’s the original post.) One thing the author, “The Visual Communication Guy”, Curtis Newbold, does really well is engage on some ethical issues! But the legal information has some problems.

Again, if you don’t want to scroll through my detailed discussion, there’s a TL;DR graphical summary at the end of this post.

If an image is too small for you to read, try clicking, many will get bigger. I also included a text transcript for accessibility in the square brackets immediately following each image.

Ethics:

NICE.png

[What if I found the picture on social media or a website?

While the laws about distributing images through social media channels like Facebook, Pinterest, and blogs are still fuzzy, it is generally considered acceptable to redistribute an image that was originally intended to be publicly viewed by the creator. This is why you will typically find original images re-posted on blogs, news sites, and social media channels even if the person re-distributing the images didn’t obtain permission to do so.

However, much depends on the way in which you intend to use the image. It is unethical to redistribute an image on Facebook, for example, if a person didn’t intend for the image to go public in the first place. It is also a form of plagiarism to post an image on your blog or website without citing the original source (and it is considered best practice to link back to the original source as well.)

Pay attention to the fair use laws and othe questions to the left when considering using other images you find online. Be careful about using others’ images for personal gain, commercial gain, and even formal presentations without obtaining permission first.]

Commentary:
The middle paragraph here is a thing of beauty and a joy forever. Hearts. So many hearts.

The first and last paragraphs, I have some little quibbles with. “It is generally considered acceptable to redistribute an image that was originally intended to be publicly viewed by the creator” is, I think, a true statement. It’s just that “general” is not, perhaps, even the majority of people. -Many- creators do not think it’s acceptable to redistribute their images (sometimes counter to what the law thinks about that). I’d also highlight that what people do & don’t consider acceptable, and what the law does or doesn’t allow (the law is fuzzy, but there are some clearer areas), don’t always line up.

Moreover, the community norms of different social communities vary about ‘generally acceptable redistribution’ – Tumblr, for example, seems to be widely of the opinion that sharing someone else’s art post is okay as a -reblog- (which the original poster automatically sees), but not as a new, separate post which the artist may not see…

Paying attention to fair use laws is good; and personal gain & commercial gain I’ll discuss below. I’m not sure why Mr. Newbold is calling out formal presentations for permission-sensitivity; my overall impression is that those are as social-norms-governed as social media sharing.

Definitions:

definitions.png[Copyright – The protection given to any created image or work from being copied and distributed without permission. All images are immediately given copyight to the creator when the image is created.

Fair use – The legal right to use copyright images as long as the images are used for educational, research, or personal use, or as long as the image benefits the public good in some way

Creative Commons – Images that are copyrighted but that the creator has put provisions on their use. A creative commons license might stipulate, for example, that an image can be used as long as it isn’t modified in any way.

Public Domain – Images that no longer have copyright restrictions either because the creator willingly relinquished their copyright or because the creator is dead and no one owns the copyright.]

Commentary:

Mr. Newbold’s definitions of Copyright and Creative Commons licenses are not quite how I’d word them, but pretty accurate.

I like that he says fair use is a legal right to use, and I like that he includes “… as long as the image benefits the public good in some way” as part of his definition of fair use – but I think that this definition, especially coupled with other discussions of fair use in the flowchart section, understates fair use and implies some bright-line rules that maybe aren’t so bright.

The public domain definition is off – “images that no longer have copyright restrictions” is a good starting point, but creators relinquishing rights is still the least-common way works move into the public domain. Works may not have copyright restrictions because they -never were covered by copyright- (e.g., U.S. federal gov’t works), or because the term of copyright has ended.

While it’s true that creators’ dates of death are often relevant to whether the copyright has ended, they are not always relevant. Most importantly, the implication that a work is in the public domain when “the creator is dead and no one owns the copyright” is misleading in two ways. First, some people might take that to mean (especially with the further discussion in the flowchart) that copyright ends with the creators’ death(s) – which is SUPER not true. Second, even when the creator is dead and there’s no identifiable rightsholder, the copyright may still exist. I’ll talk about this more below, under “Orphans.”

The final “Yes!” and “No!”

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[Yes!  If your picture is in the public domain (meaning the original creator(s) released their rights to the image) or if you purchased the image and its copyright (like from a stock photo company), you can feel comfortable using the image for whatever you like. If your image is protected under creative  commons, be sure to check the conditions under which you can use it (you may not be able to modify it or profit from it, for example.) If you are uncertain if the image is in the public domain or creative commons, assume it is not and avoid using it until you’ve obtained permission.

No!  If you couldn’t answer “yes” to any of the fair use questions and you haven’t purchased or obtained permission to use the image, you should under no circumstances use the image, regardless of where you found it. It is no only considered unethical to use another person’s or company’s image without permission, it is illegal. ]

Commentary:
A few quibbles on the “Yes!” – not quite right on the public domain definition, and there is a difference between purchasing a license or permission to use an image, versus purchasing “the image and its copyright”. The latter implies actual transfer of the whole copyright, which is almost never going to be what’s happening in a permission-to-reuse context (though if you did acquire the whole copyright in the image, it’s true it would be a resounding “Yes!” to reuse.)

I also think the wording “protected under creative commons” is weird, and implies less reusability than Creative Commons is intended to create. I would generally say “released under” or “distributed under/with” a Creative Commons license. On the other hand, Mr. Newbold may be trying to encourage people to consider using Creative Commons licenses on their own works; in that sense, the “protected under” phrasing makes a lot of sense, because it counters the myths that persist that CC involves “giving up” an artist’s rights.

As to the “No!” answer – couldn’t be more correct. I would point out that this “no” answer actually also applies to social media reuse, as far as the true legality of sharing. Community expectations and ethics are one thing, but it really can be copyright infringement to make and distribute copies of someone else’s stuff online, even if you just like it. (Fair use likely covers a lot of the uses that community norms seem to think are okay, though.)

Orphans

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[Would it be considered impossible to obtain permission from the original source?

Yes! If you are certain that it is impossible to obtain permission from the person or entity that created the image (if the creator died and no one owns the rights, for example), you are usually safe to use the image without permission.]

Commentary:

1. The original creator is often not the rightsholder of a work. This section does acknowledge that possibility indirectly, but readers of the flowchart might not understand that. Better to phrase it as something like “impossible to obtain permission from the rightsholder – who may or may not be the original source,” even though that may reduce clarity.

2a. It is actually true that if you can’t find anyone to ask for permission, you may be safe to use the image – but only if you’re framing this as a risk assessment, rather than a legal, issue. It is highly likely that if you can’t find anyone to grant permission, there’s no one who would object to your use. But the fact that you can’t find anyone to grant permission does not mean that, legally, you don’t need permission; it just means that not having permission is unlikely to be a problem.

2b. The fact that you can’t find anyone to ask permission does -not- mean that the legal conclusion would be that you didn’t need permission. Rights do not cease to exist with a creator’s death, and they -also- don’t cease to exist just because the people who inherited the rights after the creator’s death don’t know they inherited them. Ridiculous, no? But true. This is what is known as the “orphan work” problem – when you can’t prove the rights are -ended-, but you can’t figure out who does own them. It’s an issue libraries and museums struggle with frequently, as a lot of the unique materials in our collections are orphans.

One important legal consideration is the effect of unidentifiable rightsholders on the fair use analysis. It almost always strengthens fair use arguments for reuse, with respect to the “market harm” portion of the analysis. Concretely: if you really-o truly-o cannot find a rightsholder, then it’s almost impossible that you’re causing current market harm. You could be causing harm to a market that might open up when the rightsholders find out they’re rightsholders, which is why museums and libraries are still justifiably worried about this stuff, but that’s often going to be a stretch.

Note: What it means for it to be “impossible” to obtain permissions, or to track down rightsholders, is pretty tricky. Well-intentioned people have concluded that it was impossible to identify rightsholders for certain works, only to have others track down the respective rightsholders with a brief round of internet research.

There are also several related ethical question, with respect to reuse of orphan works. Just to start, is it more ethical to let them sit & moulder, or to share them with the public? Even when we don’t know the creator(s) intent? There’s a lot more to unpack there, but this post is already too long!

Fair Use

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gain.png

[Ask Yourself the Fair Use Questions

Are you using the image for personal, non-profit, educational, research, or scholarly purposes AND are you using the image sparingly, only for limited purposes?

Are you transforming or repurposing the image to create a new purpose or meaning?

Are you publishing the image in a fact-based context or publication that benefits the public as a whole (such as in a news source where it is important that people see the image)?

Yes! If you are using an image in an educational or research setting for limited non-profit uses (don’t distribute on a brochure, for example), or to just hang on your wall, you are usually safe to use the image without permission

Yes! If you completely rework the image so that it isn’t recognizable from the image, you can use it. Or, if you completely change the meaning (as you might in a parody), you are usually safe to use the image.

Probably
On a case-by-case basis, an image may be safe to use under fair use laws if the image is published in a non-biased way in order to inform or educate the public for the public’s good. ]

[Will you be using the image for personal or commercial gain? (If you answered “No” to all the fair use questions, the use of your image would most likely be considered for personal or commercial gain.)

Commentary:

I like the emphasis on “Yes!” answers and the incorporation of ideas about public benefit into discussion of fair use. But there’s quite a bit left out here, and some misleading and/or incorrect information about the law.

First, a use never -has- to be non-profit to be a fair use. There is substantial caselaw on commercial fair use. So educational/research users do not -have- to be non-profit to make a fair use – it just helps A LOT to be non-profit.

Similarly, a use does not have to be limited or sparing to be fair use. There is substantial caselaw on fair use of entire works, including commercial uses, like Google image and book search. Importantly, educational and research users often have good reasons why they need to use an entire work, to accomplish pedagogical, scholarly, or critical goals – and that may often be fair use.

The implication that personal use is fair use – i.e., “just to hang on your wall” – is interesting. Content holders -regularly- contest otherwise, especially when the personal use is substituting for a sale. Is it fair use to print a picture from a website that sells prints of that picture? I’d be willing to bet Posters.com would say no. Is it fair use to copy music off of CDs you borrowed from a friend? The RIAA -has- said no. There are plenty of folks who do agree that personal use is often fair use, but especially when there is documentable market harm, courts are often not persuaded.

I do like the discussion of transformative use – a lot clearer than in the other “use flowchart” I picked at last month. But the “Yes!” here is a bit weird. Yes, changing the meaning as in a parody is likely to be transformative, but you don’t have to rework an image so that it is unrecognizable to qualify as transformative otherwise. The appropriation art cases (mind-bending as they may sometimes be) strongly suggest otherwise. Moreover, just because a work is transformative doesn’t mean that the statutory factors are irrelevant – courts do tend to look less favorably on commercial, non-commentary transformations than on noncommercial ones, or than on ones that are commercial (Richard Prince, anyone?) but culturally valued.

The discussion of the news and commentary flavors of fair use is quite limited here – it sort of implies that that only applies in fact-based contexts, which isn’t right. But it’s good that the public interest in seeing a whole image is recognized as part of the fair use analysis in news and commentary contexts.

The first half of the “Probably” box is a really great summary of fair use in general – but the second half runs off the rails a bit. “Non-biased” is not part of the legal requirements for fair use at all; having a bias and a strong point of view about an image is often going to -strengthen- a fair use argument, since it usually means you are engaging in criticism or commentary -of that image- (as opposed to just using an image to illustrate a discussion, which might be less likely (though still possibly) fair use.)

Finally, there’s a box off to the side from fair use in the flowchart that asks about “personal or commercial gain”. I’m not quite sure what Mr. Newbold was getting at here; commercial purpose is relevant to fair use (though not conclusive that a use is not fair.) But I don’t understand what he means by “personal gain”, as distinct from “commercial gain” -and- “personal use”. Anyway. I feel like pieces of the contents of this box, and a few others related to the statutory factors that don’t exist on this flowchart, belong over in the “fair use questions” area. 

Your Own Stuff

ownwork.png

[Did you take or create the image yourself?

Was the picture you created an original idea?

Yes! If you took a picture with your camera or if you drew or designed an image and the concept was completely your own, you automatically own all copyrights to it and no one can use it or distribute it without your permission.

No! If you created a picture that is so similar to someone else’s that it might be thought of as theirs, you cannot use your picture for anything other than personal use.

When in doubt, do your research to find out if you copied an idea. Otherwise, don’t use the picture for anything other than limited personal use.]

This part is almost the most confusing, to me – despite also containing some very correct & useful information. Most helpfully – yes, your own “original” work is often the -very easiest thing- to use and reuse! However…

1. First, worth acknowledging that just because you created it, it does -not- automatically follow that you own it and can do whatever you want with it. If its your job to create it, your employer probably owns it. If someone hired you on a contract basis to create it, they may or may not own it (and that should’ve been addressed in the contract!)

2. Just because you took a picture with your own camera does not mean you can use the image – a photographic copy of an in-copyright artwork, for example, may contain little expression by the new photographer, and the nested copyright of the artwork may mean you have to engage in a more detailed copyright analysis than “I took it, so I can use it.”

Wrinklier still, lots of us have images on our own cameras that we didn’t take, or where we don’t remember who took it. Legally, the copyrights in those images belong to the people who took them. Doesn’t mean you can’t re-use, but does mean that you may need to think twice.

3. “[T]he concept was completely your own” is a high bar for originality. Copyright doesn’t necessarily require that. You can be inspired by someone else’s work, or even engaged in homage to their work, without creating many issues for your reuse of your new works. It -is- true that the more the inspiration or homage result in your new works resembling the old ones, or copying their “expression” (choices such as lighting, angles, poses, etc can be expression in photography) the more reuse will involve questions about the copyright in the original works -as well as- your own new interpretations thereof.

4. Finally, COPYRIGHT DOES NOT PROTECT IDEAS. The United States does not recognize ownership of ideas except under quite limited circumstances (some patents, trade secrets). Copyright protects the way an idea is expressed, not the idea itself. Sometimes the two can be very hard to separate, but sometimes not.

For example: if your work can be mistaken for someone else’s, Mr. Newbold says, “don’t use it”. That may be true if you literally copied someone else’s work, e.g. by tracing or scanning. However, literal copying is not the only reason your picture might resemble someone else’s! The law recognizes that independent creation isn’t copying, and isn’t copyright infringement – so for example, tourists take photos from specific scenic overlooks – some of those
photos will be unique, but lots will resemble each other strongly, and the copyrights in those strongly-resembling-one-another images are separate, and you can use your own.

More importantly, if you are expressing the same idea as someone else, but your choices in -how- you expressed it are different, there may be no copyright issues in reusing your work. I saw a really lovely illustration of “Alice in Wonderland” done in the style of a traditional Japanese print. Reusing that might raise issues about the inspiration from the book (if it wasn’t in the public domain), but it quite concretely doesn’t raise issues about the similarities to other illustrations of “Alice in Wonderland”, including the Disney movie! The resemblances between the illustration are not about copying the other illustrators’ expression, but rather the unowned ideas, and public domain expression, of the original story.

In conclusion, there’s a lot to like here, but as a complete guide to the “Can I Use That Picture?” question, it falls short.

TL; DR
 
click to embiggen
Overview of original flowchart, with sections marked as good and bad

To the extent that my commentary adds any new copyright to these images that -I- own (I sincerely doubt that it does!), they are, like my contributions to the blog in general, licensed under a Creative Commons  BY-NC/Attribution-Noncommercial license.

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