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What are Fair Use Rights for Digital Photos?

written by: Steve Graham•edited by: Rhonda Callow•updated: 6/27/2011

Fair use law provides limited usage of your photos for specific purposes. Here is a quick guide to fair use rights.

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    Introduction

    Your photographs have copyright protections, but these protections do not prevent all use by other individuals or organizations. Fair use laws and guidelines generally cover how your photos can be legally used. The following rules mainly apply in the United States, but the Berne Convention protects newer works in most developed countries.

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    What is copyright?

    Copyright protections limit the right to copy and use your photos. The actual image or artwork is protected, not the concept. For example, you can shoot a photo of a wine bottle through a wine glass. You own the photo, but not the idea of the shot.

    You need not apply for an official copyright. Your photo is protected the moment you click the shutter. However, official protection may help defend your rights in a legal case.

    In the United States, copyright expires 70 years after your death.

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    What is fair use?

    Your copyrighted photos can be copied and used without your permission in some cases. "A fair use is any copying of copyrighted material done for a limited or 'transformative' purpose, such as to comment upon, criticize or parody a copyrighted work," wrote Attorney Richard Stim in his extensive copyright book "Getting Permission." He then notes millions of dollars have been spent in courts trying to define fair use rights on a case-by-case basis.

    He said a judge will consider the purpose of using your photo, the nature of your photo, the percentage of your photos used and potential limits on your profitability.

    Fair use laws offer some protection for news reporting, critical reviews and education. For example, a teacher is allowed to use most images in a classroom slideshow, but not in a textbook.

    Here are a couple of other significant fair use photography decisions, both from Stim's book.

    • Internet search engines are legally allowed to use thumbnail images because they are so small and low-quality that they do not limit the commercial market for the photos.

    • Advertisements for "Naked Gun 33 1/3" superimposed Leslie Neilsen's face on a famous photo of a pregnant Demi Moore. The court called the use parody.

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    How to sell other rights

    For any other purpose, a user can buy your photo or specific rights. Click here for a useful sample agreement for photo permission. Both the photographer and the publisher should create a detailed agreement for the exact usage, distribution and exclusivity.

    Potential buyers may search for your contact information through a photographers' organization, so there can be advantages to registering with such groups.

    You can also forego copyright protections by accepting a photography assignment, but you should still be sure to agree on a specific contract with the publisher.

    Finally, you can let anybody use the photo by putting it in the public domain and submitting the photo to directories such as Wikimedia Commons.