Blogging IP Legal
How can other blogs legally use my photos and posts?
April 24, 2015
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How do these sites do it?

A question came up recently on the Blog Brilliantly Facebook group that might interest bloggers and other Internet content creators. There are content aggregators out there, such as Buzzfeed, and bloggers who repost others’ photos in order to keep their site full of fresh content.

How can they do this legally and without permission, as they often do?

That’s a great question that has a few possible answers. Let’s look at them, Buzzfeed-style.

1. ``Security in Obscurity``

One of the best ways to get away with something, as we all know, is not to get found out. In many cases, the Internet is just too big to notice if someone is stealing your stuff. So while someone may technically be breaking the law by reposting your stuff, you never actually notice it.

This happens more than we would like to think. Though things like Pingbacks can help you notice when someone is reposting your blog content, it doesn’t always work that way – particularly when it involves liberally quoting your post and rehosting your photos.

In many cases, the Internet is just too big to notice if someone is stealing your stuff. So while someone may technically be breaking the law by reposting your stuff, you never actually notice it.

How do you avoid this? One way is to have a rabid fanbase that’s on top of this kind of thing. Another way is to search for exact-match quotes from your posts or reverse image lookups to see if they are being quoted or hosted elsewhere.

If there’s a problem, you can move forward with a nice letter, a threatening letter, or straight to a DMCA takedown in order to get the content taken off the Internet.

2. Tacit permission

Some bloggers and others actually benefit from the backlinks that these kind of posts generate (the ones that actually link back to the source, that is). So in these situations, they know about the alleged infringement but choose not to do anything about it.

3. They actually HAVE permission

It isn’t uncommon for a blogger to reach out to another content creator for permission before reposting their stuff. That may be the situation, particularly when the original creator is interviewed for further comment or provide additional content.

Like in #2, those backlinks can be important, particularly when they come from a popular content aggregator site!

4. It's a fair use of the copyrighted content

In many cases the use of another blogger or photographer’s content would constitute a fair use under US copyright law.

I have an entire eBook on the subject that you can get by signing up for my mailing list (over on the right side of the page), but here’s the short version.

Fair use is an affirmative defense to a copyright infringement claim. This means that you are admitting that you infringed on someone’s copyright, but you’re using fair use as an excuse that allows it.

In many cases the use of another blogger or photographer’s content would constitute a fair use under US copyright law.

Courts look at four factors when determining if your use of the copyrighted content is fair. These are:

  1. The purpose and character of the use – uses for criticism, comment and education weigh in favor of fair use, commercial uses can weigh against fair use
  2. The nature of the copyrighted work – taking from unpublished and creative works weighs against it being a fair use
  3. The amount and substantiality of the portion taken – taking a significant portion or the “heart” of the original work weighs against it being a fair use
  4. The effect on the potential market for the copyrighted work – if the use harms the potential for selling the original, this weighs against it being a fair use

The court balances these four factors out and decides if the use is fair or not. Of course, being something Congress and lawyers came up with, it is way more complicated than it needs to be. Check out the eBook I mentioned for more comprehensive info.

Essentially, if they are just using some quotes or one photo out of a larger photo essay, this is probably fine. If they are quoting you and critiquing what you had to say or are using the quotes to educate their audience, this could also be fine.

However, if they’re taking the bulk of the work and just making a commercial blog post out of it, it’s probably not a fair use.

The good news for content creators is that if you sue them over this, they usually can’t stop a lawsuit by claiming fair use – it is something you have to prove at trial in most cases. Therefore, the threat of a takedown or a lawsuit may carry more weight in cases where they are relying on fair use as a defense.

The good news for content creators is that if you sue them over this, they usually can’t stop a lawsuit by claiming fair use – it is something you have to prove at trial in most cases.

In my next post, I’ll talk about why it’s a bad idea to rely on fair use in building your business and what kinds of businesses CAN reliably rely on it.

See you then. In the meantime, grab a copy of that eBook. Seriously, it’s free!

photo credit: Hail to the Thief via photopin (license)

About author

Zachary Strebeck

I'm a solo practice lawyer and full-time digital nomad. I run my law practice at www.strebecklaw.com, representing Internet, mobile software and gaming entrepreneurs. I also blog about digital nomad travel at A Lawyer Abroad.

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