Reply To: Using other photographer's work to promote your business

[cameraclicker]

Stef, I use (and probably abuse) Fair Use as much as anyone.  In Canada, but not in the US, Fair Use requires giving credit and/or providing a link back to the original depending on circumstances.  In Canada and the US copyright law is similar but not the same.  The photographer author is in the US so presumably those rules apply.

I read case law that involved a photo of a minor which was in a book and on the cover.  The outcome was that the photo on the cover required a model release but the photo in the book did not.  Apparently the book’s cover was deemed to be advertising, and the photo inside was simply a photo taken by the author.  This differs in that the photo with the watermark was taken by a professional wedding photographer and used without permission, or even knowledge of that photographer, in a publication which claims copyright over the entire contents of that publication — which would lead me to believe the author owned copyright or had permission of the copyright holder to include work.    Additionally, the photo in one publication simply appears in the middle of a wedding shot list with no reference to the actual photo.  In the second publication, the text around the same photo discusses “finding the story” but it does not directly address any part of the photo.

The US rule is:
17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The section above was lifted from Wikipedia, but they got it from the legislation.

 

So, the photo appears in a book which is retailed on Amazon for $8.95 and while the book is instructional, any photo or any wedding photo (depending on which book) could be used to replace that photo without changing text or any information conveyed; it was a wedding photo from a photographer’s blog; the whole photo complete with watermark was used; the effect on the market is difficult to call since the photo was of someone’s wedding and the photographer had already provided the photo in their own blog.

 

I think it would clearly be fair use if the author had presented the photo and then gone on to discuss how the poses of those in the photo had enhanced the mood, or made them look thin and elegant…  Or, if he had discussed how the lighting affected the overall image…  Or, had referenced the photo in any way, rather than simply including it as eye candy, without any specific reference and without credit.