I’d like to see a future piece on how “fair use” can be used as a defense when the copied content is used for splogging. The Copyright statement on my Web site clearly states that no material from my site can be used on other sites that aggregate content for the sole purpose of attracting readers for AdSense (or other pay per click) advertising revenue or to boost Google (or other search engine) rank.

I guess my question is: can a copyright holder make an enforceable statement prohibiting certain use of her work?

Well put on all accounts. I definitely agree that if you can’t make a fair use case in one format, it won’t work in another. Very well said.

In most cases, a blogger is going to copy a photo published by a source that purchased it from an agency and uses it under license from that agency.

Most likely, the only thing that has kept bloggers from being sued for copyright violation is the cost and hassle factor of suing singleton bloggers. Also, some agencies may honestly not care if non-commercial personal sites with miniscule readership grab an image now and then.

Remember, too, that a credited photo used on a commercial site that happens to publish using a blog format was almost certainly purchased and on the up and up. Personal and noncommercial bloggers cannot blindly emulate what we see those commercial operations doing.

The courts will be largely indifferent about the tools and the software someone uses to publish. They will see the act of making unauthorized copies of copyrighted photos on the web and publishing them on a blog as equivalent to making unauthorized copes of photos in newspapers and then publishing the copies in your own little newspaper. If you can’t make a fair use case in one kind of publishing, you probably can’t make it in another.

It’s a difficult question for a lot of different reasons. Using an entire work can be considered fair use if the entire use is required for the intended use. Photographs are an excellent example of that since they are often difficult to crop or useless when just a small portion is used.

The real question comes down to how the photo is being used. There is a BIG difference between using the photo as a small portion of a much longer work than simply reposting the image.

For example, using a thumbnail of a copyrighted photo as an illustration for a lengthy article is much more likely to be considered fair use than simply reposting the photograph.

As with all fair use issues, there is no “silver bullet” to ensure that you are using a work fairly, but I would take several steps to safeguard myself if I were in such a position. First, I would use a smaller version of the image and link to the original article containing the full image. Second, I would ensure that the photo was a very small in proportion to my original content. Third, I would obviously give credit where it is due.

As the Perez Hilton/X17 case has shown, there is a lot of room for interpretation about where fair use falls when dealing with photos. I am following that case closely as the outcome of it as it will likely have a major role in defining the lines for fair use when it comes to publishing photos on the Web.

Any ideas on how you can use news photos in a fair use manor on blogs?

Thanks.