Fair use
Many websites, from fan sites to personal sites to design sites, use images of celebrities in their layouts, graphics, or galleries. Some webmasters look down on these sites, claiming that the use of such images violates copyright law. But does it really?
Thankfully for everyone who owns a website or surfs the Internet, using a photo that you didn’t take yourself is not always illegal. The United States Copyright Act of 1976 established the right to fair use.
“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
I’ll go through all four factors with the example of celebrity images:
1. The purpose and character of the use
The use of celebrity pictures in graphics and layouts is transformative – the webmaster is adding to the pictures to create original art instead of reproducing the pictures exactly. The use of such pictures on a fan site, even if they aren’t turned into graphics, is also somewhat transformative. Photographers and press sites like Getty Images and WireImage aim to display and make money off of images of various people and events, while fan sites aim to create a comprehensive source on a single celebrity. So I would argue that these uses are different. This brings me to my next point: the use of celebrity images on fan sites, personal sites, and some design sites is noncommercial. With the exception of design sites that charge money for their designs, most sites use celebrity images for fun, for artistic expression, or to educate people about the celebrity.
2. The nature of the copyrighted work
Creative works tend to be considered worthy of stricter copyright protection than factual, non-creative works. Many images of celebrities, such as those taken by paparazzi or those taken at premieres and other events, don’t involve much creativity. The photographers’ goal isn’t to create an artistic photo with good composition and contrast; it’s to get images of a famous person. Photoshoot images involve a little more artistry, but the main point of these photos is still the celebrity subject, not the artistic merits of the photograph itself.
3. The amount and sustainability
Most fan sites use (or aim to use) the full-sized images in their galleries, but some graphics contain cropped or smaller images.
4. The effect upon the potential market
Graphics made with celebrity images wouldn’t have much of an effect upon the market for the original images. Icons and blends aren’t a good substitute to a person who is merely looking for photos of a celebrity. Galleries may have some effect, though, as people can look at and save the pictures for free instead of being forced to pay for these “privileges” from sites like WireImage. However, most press sites and photographers’ sites allow users to view pictures for free, and some sites, like GettyImages and Corbis even make it possible for people to save pictures for free after signing up for an account. Plus, most of press sites’ customers are news outlets, which don’t tend to get their images from fan sites anyway. So, it’s not conclusive that fan sites’ image galleries significantly harm press sites’ market power.
In conclusion:
So is the use of celebrity images fair use? When the images are used in graphics for nonprofit purposes, all four factors tend to indicate that the use is, in fact, fair. When the graphics are made for a profit, the first factor seems to point equally toward fair use and copyright infringement, but the other factors still point toward fair use. When the images are used in a gallery, the first, second, and possibly fourth factors point toward fair use, and only the third factor points toward infringement. So, the bottom line is that most uses of celebrity images are probably fair and legal. Don’t necessarily write off using celebrity photos, and don’t look down upon sites that do.
Note: This article is just my opinion. It is by no means formal legal advice.