FAQ on the Blog Photo Debacle

Photo by Alexander Henning Drachmann (cc)So I'm still recovering from RWA this week. I have a fun combination of a sick child, a cold, and lingering jet lag. But I thought I'd pop in really quickly to answer a few questions. I've been getting a boat load of emails since my photography post. Most have been kind words--I appreciate that--but many have also had additional questions about the post and/or copyright.

I don't necessarily have definitive answers on some of these because I am NOT a lawyer and this is NOT legal advice. However, I can tell you what I've found in my own research during all of this.

FAQs from my inbox:

1. If I can't find out who owns the photo, can I use it?

No. Just because you don't know who owns it, doesn't mean it's not owned. Just find another photo that is creative commons or that you can pay or get permission for.

2. What about still shots from TV shows or movies?

This was one I really wanted to know. It *seems* like this is okay under Fair Use because you are only using a small part of a whole and not impacting the ability for the movie to sell. Jane at Dear Author spoke a little bit about this in a recent post.

3. What about YouTube videos?

If you are the one making the videos, then be careful. Don't use copyrighted material in your videos. However, if you want to say, embed someone else's YouTube video on your blog, is that okay? I haven't gotten a black and white answer on this. But here's what I've gathered. If it's a very short movie/TV clip, then it *probably* falls under Fair Use under the same logic as the movie still. If it's a music video/movie preview/clip hosted by that brand/artist/TV show/movie studio and there is an embed feature enabled, then it's *probably* fine. Like I said, don't take this as legal advice. But the nice thing about YouTube is that if you embed something on your blog and then You Tube finds out that the original person used copyrighted material, they take down the video and it will disappear anywhere it's embedded. So use with caution, but some particular uses are probably fine. (And obviously if a clip has the embed feature disabled, then don't use it at all.)

4. What about LOL Cats/Cheezburger photos or those funny e-cards?

For the e-cards, there are specific rules on how to use them. You can go to their terms of service and look, but it seems like the proper way to use them is via embed code NOT just cutting and pasting.

From SomeEcards TOS:

If you include or post any of the Content on another website, YOU MUST EITHER:

1. use the sharing and embedding buttons on the Site for Tumblr, StumbleUpon, Facebook, Twitter, or Pinterest; OR
2. use the embed code or post the link of the Content ONLY.

Any other downloading of Content or dragging it to a third party site violates our rights to the Content.

As for the other, Jane at Dear Author contacted LOL Cats and it seems that they are okay if the embed code is present. Here's a quote from her site:

I emailed LOLCat about the embed codes and was told that some of the images don’t have embed codes for copyright images and that you needed to click through to the individual page of the LOLCat to see if there was an embed code but if there was one, it was there to be used.

5. What about recipes?

Recipes ARE copyrighted. You can copy a list of ingredients, but the directions on how to cook those ingredients are copyright protected. So no cutting and pasting someone else's recipes on your sites. (That obviously goes for the food pics that accompany them too.)

6. What about song lyrics or poetry?

Copyrighted. You can't use them in full. A small quote of a line or two would probably be fair use. The only exception would be things that have outlived their copyright term and are now in public domain.

7. If I post a link in Facebook and it adds that small pic from the original post to the link, is that breaking the rules?

Since that is a thumbnail sized pic and is a link to the original site, that appears to be fine. You didn't actually make a copy of the picture and paste it into Facebook.

8. Do these photo copyright laws apply across all the platforms: Pinterest, Facebook, Tumblr, Pinterest, blogs, etc.?

Yes.

9. What about celebrity photos?

Those are copyrighted just like anything else. Most of those big gossip sites probably pay a fee to certain companies to get a certain amount of access. They are not free to share. If you need to talk about a celebrity, a better option may be a screen shot from a movie with them in it.

10. If a site has a Pin It button, is it okay to pin?

Not necessarily. For instance, any blogger can put a Pin It button on their site, but if they are using other people's images (knowingly or unknowingly), you could be pinning copyrighted stuff. However, if a retail site has the Pin It button on their own product pages, you're *probably* okay. Never hurts to check their Terms.

11. What about book covers and movie posters?

Publishers get the rights to the book covers to use them for promotion, so bloggers using them to talk about the book is fine. However, you cannot take part of the image and use it for your own purposes (i.e. lifting off the text and using the photo on the cover for other purposes.) I'm assuming the same applies to movie posters since they are a promotional tool and when used in the context of commentary or review would probably fall under Fair Use. (Though like I said above, don't take my word as law. There are other ways you can't use movie posters and book covers. Here's a bit of an overview for movie posters.)

12. Can you release the name of the photographer or details of the case?

No. I wouldn't do that anyway, but there are confidentiality rules. So if you hear anything out there about what amount was paid or who was involved, it's probably not true because I haven't released any details and won't be doing so.

13. How do these apply internationally?

My research has been U.S. specific, but most countries have copyright laws. Things are going to be different from country to country so be sure to look up the rules that apply to you.

All right, I think those were the main ones. Hope that helps! 

A Bright Side - Writers Building a Photo Sharing Community

Wow, it's been a crazy weekend here at the blog with my copyright post this last Friday. I had to close comments finally because things were starting to spin into the name-calling direction. But before that, there was a vibrant and impassioned discussion in the comments and I appreciate everyone who chimed in with things that added to the discussion.

And clearly based on the shear volume of visitors and attention the post has I gotten, I wasn't the only one confused over the Fair Use laws. So I'm glad that even though this wasn't a fun thing to go through, the word on the right way to use photos is getting spread. That's good news for bloggers AND photographers.

One benefit that came out of this was bloggers and writers getting inspired to create their own photos and to share them. Kristen Lamb, founder of WANA International and the blogger/author behind the #myWANA (We Are Not Alone) hashtag on Twitter, even started a group on Flickr where we writers can submit our photos for free sharing with other writers for blog use. Already I'm astounded at the gorgeous pics some of the WANAs have submitted to the group. I guess I shouldn't be. Writers are a creative lot. : )

And it's definitely made me start looking at random things I could photograph for blog posts. On today's agenda was kidlet's toys. Here are some photos I've taken. (I think kidlet had as much fun as I did with the process.)

His favorite puzzle

For back to school posts

Recreating the Jurassic Park scene for my Plot-Driven post

Yes, I violated kidlet's dolls to create a pic for my Sexual Tension post. Let's ignore that they're technically brother and sister. I was just channeling Flowers in the Attic.

Kidlet's creation.

So I'm a person who always tries to find the positive, the bright side, of situations. Life's too short to stew in negativity. So that's what I want to do in this situation as well. One obvious positive thing that has come out of this is awareness in the blogging community and a swell of people changing things now that they know better. But also seeing writers get together to help each other out warms the cockles of my heart. 

I hope the creativity and the desire to make things better continues.

Now just a heads up--I'm going to be attending the RWA conference this week so my internet access is going to be limited at best. I have the lovely Tori St. Claire guest blogging here tomorrow, but the rest of the week, I'm taking off from the blog. I hope to come back from RWA with lots of great new information to share.

I hope you all have a fantastic week!

How has learning about the copyright rules changed how you're going forward with your blog? Are you more motivated to take your own photos?

Bloggers Beware: You CAN Get Sued For Using Pics on Your Blog - My Story

Photo is my ownSo today I'm forgoing the usual Fill-Me-In Friday post to talk about something that I've been wanting to blog about for a while but couldn't until the situation was wrapped up.

For those of you who are super observant, you may have noticed some changes on my blog over the last few months. Tumblr posts went away. Fiction Groupie disappeared. I deleted most of my Pinterest boards. The Boyfriend of the Week has changed format. And all my previous posts from the past three years--all 700 of them--now have new photos on them.

Why is that? What happened?

Well, you've probably figured it out from the title, but it's because I've been involved in a case regarding a photo I used on my blog. Like most of you, I'm a casual blogger and learned my way into blogging by watching others. And one of the things I learned early on was that a post with a photo always looked nicer than one with just text. So I looked at what other people were doing for pictures. And mostly it seemed that everyone was grabbing pics from Google Images and pasting them on their sites. Sometimes with attribution, most of the time without. And when I asked others (or looked at disclaimers on websites and Tumblrs), it seemed that everyone agreed using pics that way was okay under Fair Use standards. 

Here is an example of a disclaimer I found on a bigger site (name of blog removed):

THIS BLOG claims no credit for any images posted on this site unless otherwise noted. Images on this blog are copyright to its respectful owners. If there is an image appearing on this blog that belongs to you and do not wish for it appear on this site, please E-mail with a link to said image and it will be promptly removed.

And site after site had the same kind of thing. Just look on Tumblr, that same type of disclaimer is on a ton of them. And I'm thinking--well, that must mean it's okay because if that weren't true, sites like Tumblr and Pinterest couldn't even exist because reposting pics is the whole POINT of those sites. So off I went doing what everyone else does--using pics from Google Images, putting a disclaimer on my site, etc. 

Well on one random post, I grabbed one random picture off of google and then a few weeks later I got contacted by the photographer who owned that photo. He sent me a takedown notice, which I responded to immediately because I felt awful that I had unknowingly used a copyrighted pic. The pic was down within minutes. But that wasn't going to cut it. He wanted compensation for the pic. A significant chunk of money that I couldn't afford. I'm not going to go into the details but know that it was a lot of stress, lawyers had to get involved, and I had to pay money that I didn't have for a use of a photo I didn't need.

It wasn't fun. But the fact of the matter is, I was in the wrong. Unknowingly. But that doesn't matter. And my guess is that many, many of you are doing the same thing I was doing without realizing it's a copyright violation. So I wanted to share my experience so that you can learn from my mistake.

Here's what I learned about Fair Use:

It DOESN'T MATTER...

• if you link back to the source and list the photographer's name
• if the picture is not full-sized (only thumbnail size is okay)
• if you did it innocently
• if your site is non-commercial and you made no money from the use of the photo
• if you didn't claim the photo was yours
• if you've added commentary in addition to having the pic in the post
• if the picture is embedded and not saved on your server
• if you have a disclaimer on your site.
• if you immediately take down a pic if someone sends you a DMCA notice (you do have to take it down, but it doesn't absolve you.)

NONE OF THAT releases you from liability. You are violating copyright if you have not gotten express PERMISSION from the copyright holder OR are using pics that are public domain, creative commons, etc. (more on that below.)

I didn't know better and I had to learn the hard way. So I want to let you all know now so that you don't have to be a cautionary tale as well.

Plus, beyond not wanting to be sued, most of you who are reading this are writers. Our livelihood depends on the rights to our work. I've already had to send my own DMCAs to sites that have pirated my books. So I definitely don't want to be someone who infringes on someone else's copyright. A photo is someone else's art and unless they tell me it's okay, I don't have the right to use it.

So what can you do?

1.If you've been using images without approval from the internet on your blogs, know that you are probably violating copyright and could be sued for it.

Is the chance high? Probably not. Is it possible? I'm proof that it is. So you may want to consider going through your posts and delete pics that aren't yours.

2. Search for photos that are approved for use.

• Creative Commons licensed pics -- You can search for photos that are free to use (with some restrictions) through Creative Commons. Usually this means you have to attribute the photo to the owner and link back to their site. (All of my posts now have pics that are under Creative Commons license. And there are actually really great photos available.) Meghan Ward did a fantastic post on the breakdown of creative commons licenses plus listed some other photo sources.)
• Wikimedia Commons offers free media files anyone can use. (Creative commons rules still apply.)
• Buy a subscription to a stock photo site -- This can be pricey up front but then you have access all year. There are also sites that you can pay per pic. (Here is one example of a subscription service. Thanks to Janice Hardy for that suggestion.)
• Use photos that are in the public domain.

3. Take your own photos and share the love.

Almost all of us have camera phones these days. Instead of just taking photos of our family, think of images you could use on posts. See a stop sign. Snap a picture and save it. Whatever. And if you want to give back and not just take--open up a Flickr account (here's mine) and list your own images as creative commons so that you can share the love. (You can set it up to where whatever pic you load from you camera is under that license.)

4. Use sites like Pinterest and Tumblr with caution.

I have read way too many terms of service over the last two months. And I'm not a lawyer, so the legalspeak can be confusing and I am NOT giving legal advice. BUT both Pinterest and Tumblr (and most other social sites) say that if you load something into their site (i.e. Pin It or Tumble it) YOU are claiming that YOU have a legal right to that picture. And if the owner of that photo comes after the company, you will be the responsible party. And Pinterest goes so far as to say if you REpin something, you're saying you have the right to that photo. Yes, if that's enforced, it would mean that 99% of people on Pinterest are doing something illegal. Will that ever come up? Maybe. Maybe not. But I'm leaning on the paranoid side now. I don't want to be the test case. And I don't want to pin something the owner of the photo wouldn't want pinned. 

So pin your own photos, pin things from sites that have a Pin It button (though the Pin It button is not always a safe bet either because if the site owner doesn't own the pic but has the Pin It option automatically pop up, it's still not okay .) I pin book covers and movie posters because I figure that it's advertisement for said movies or books. But other stuff? All those pretty photos? I'm going to look but not touch.

ADDED: Also see discussion in comments about posting and sharing pics on Facebook. Same rules apply. (*comments were lost in site transfer)

5. Assume that something is copyrighted until proven otherwise.

That's your safest bet. If you're not 100% sure it's okay to use, don't. This includes things like celebrity photos. Someone owns those. There are enough free pics out there that you don't need to risk violating someone's copyright.

6. Spread the word to your fellow bloggers.

It was KILLING me not to be able to go tell everyone about all of this because I didn't want anyone else to get into this kind of mess. So if you know someone who is using photos in the wrong way, let them know. I wish someone had told me.

So I know many of you are probably thinking--she's being paranoid or that the likelihood of this ever happening to you is slim. Well, maybe. But it happened to me. And now that I know better, I'm going to do better (from the Maya Angelou quote Oprah always used.) And yes, it does kill me a little bit that I can't go on posting boyfriends of the week and mancandy, but instead I'll just post links to it so you can see it elsewhere. :)

So lesson learned: protect yourself and respect the rights of other artists. 

*This post is not intended as legal advice. God knows I have no background in law. This is just my experience and what I learned working these past few weeks with people who are experts at copyright.