Copyright and fair dealing

What is the protocol about linking to content and using photographs in blogs about the media? I wonder because today I was asked to remove a photograph from a blog post on the grounds it was a breach of copyright.

The photograph was obtained by the newspaper from someone involved in the story; it wasn’t shot by a staff photographer. According an email in the correspondence chain between the publication and I, the owner of the image had vested copyright in the news organisation and I was in breach of this copyright by linking to the image in my blog.

I’m sure this is a common issue for bloggers all over the world, and I guess we do have to be aware of local laws and conditions when linking to images. I did, by the way, take down the image; though on reflection I’m not sure that there was actually grounds for the organisation to ask me to do so.

For guidance I turned to the local authority, John Burrows and Ursula Cheer’s book Media Law in New Zealand (Fifth edition, [2005] Oxford University Press). My reading is that there is provision for me to link to photographs in the context of a blog because in terms of copyright law it could be construed as ‘fair dealing’ for the purpose of review and/or criticism. Might I also have a defence in terms of ‘research’? I am after all a journalism academic whose job description includes research and critique of the news industry, journalists and journalism.

The section in Burrows and Cheer on research notes:

The protection afforded by the section extends beyond ‘students’ in its ordinary understood sense and covers members of the public who take copies of articles for reading for information or for the purpose of something they are writing. p.168

The comment about criticism or review reads:

‘Fair dealing’ with a work is not a breach provided it is for the purposes of criticism or review, whether of that work or another work, or performance of a work, and is accompanied by sufficient acknowledgment. This is a provision of some breadth. ..The author of the criticism must make only such use of it as is reasonable for the purpose. p.168

I was making a point about the writing and tone of the story in which the photo appeared and felt the use of the image was ‘reasonable for the purpose’, though my defence might have been stronger if I’d actually made some wiseacre comment about it. I didn’t because in the context I thought it made enough of a statement itself.

My argument back to the picture editor was that the fair dealing defence might apply and though I hadn’t put a direct acknowledgment on the photo or in the text, in the context of the post it might have been clear enough. Never-the-less, I was prepared to insert an acknowledgment into the post.

What is apparent, now that I’ve re-read the relevant section of Burrows and Cheer, is that it seems only applicable to quoted text; though the use of film clips seems also to be covered. The language talks about ‘quotes’ and so on. It is not clear in relation to images. My interpretation is that it’s OK to ‘quote’ images under the fair dealing provision.

I guess the real test will come the next time I attempt to do so from the publication concerned.

7 Responses to Copyright and fair dealing

  1. Ideally, you’d ask for permission to use any image. Usually, you’ll get no response or it won’t be timely or no one cares anyway. Most people just use the image and attribute the source and get away with it if the use is non-profit. If you’re asked, you could go to court, but most people can’t be bothered and take it down – right or wrong. Pox on the pedantic image owner. Killing off legitimate discussion of their image. Never buying their stupid ever again…..etc…etc…

    If you discuss their image and link to the full page, they can’t touch you. You haven’t reproduced the image. You’ve just told people where it is.

  2. Been reading the Copyright Act 1994. No wonder they want to update it! it appears you can make fair dealing use of a work (or part of a work) for criticism or review, and it looks like you can publish that review in print (by default – not explicit), but NOT if the review is to be broadcast on television, film or cable programme. Explicitly those. No other medium is mentioned. No mention of the Internet. It is print? It’s definitely not TV or a movie or cable. But photographs are treated differently, but “images” aren’t mentioned anywhere. Not all images are photographs. Looks like a lawyers playground for fun and profit.

  3. Robert Catto says:

    Just to weigh in from a photographer’s perspective, I would say the only situation in which you could claim ‘fair dealing’ in the use of an image would be if your entire discussion was about the image itself – a discussion of the artistic or technical elements of the crafting of that photograph or an analysis of the photographer’s style, rather than anything about the actual subject of the image.

    Similarly, if you were writing about an article (which it sounds to me like you were), it would be fair to reference / excerpt the text in relation to your discussion of how it was written, what the writer was implying, etc. Republishing the text in its entirety would be a different matter.

    Using an image to illustrate a discussion of the subject of the image or the article it accompanied is another editorial publication of the image to illustrate a story about something else, for which photographer and / or copyright holder would traditionally charge a fee.

    Acknowledgement (ie. photo credit) is a separate issue – the Moral Rights section of the Copyright Act guarantees that as a right of the creator of any work (not, notably, the copyright holder); so it’s not really something to offer in lieu of payment; it’s a fundamental right of the original ‘author’ of the image.

    Hope that helps clarify things a little, anyway – there’s a white paper on this sort of thing at the AIPA site (http://www.aipa.org.nz) under downloads, called ‘The Clendons Guide to NZ Law and Copying Photography’, which may help also.

    All the best,
    R

  4. absurdlyandangerously says:

    It’s confusing, I’m never sure if I’m an inch away from a copyright infringement either. I just try and be reasonable and link things to the right places. But that’s never stopped a court case. Good faith doesn’t seem to matter.
    absurdlyandangerously.wordpress

  5. poneke says:

    You’ve raised an interesting topic I have often wondered about.

    Many blogs — David Farrar’s is prominent but there are many more — lift photos straight from newspaper websites and publish them on their blogs often with no indication at all where the photo has come from.

    Given that many staff at the newspapers concerned read such blogs, I am surprised they have picked on you, a media academic.

  6. Just thought of this: If you have a blog and you make no money from it, you may be able to get away 99% of the time with attributing the image source. But what if your blog has “Adsense” or some other revenue-generating function attached to it? You’re no longer a “non-profit”. You ld have to be more strict. Poneke’s example of Kiwiblog made me think of this as David Farrar had ads all over his blog. Also, any Blogger.com blog will have the option to turn on Google “Adsense” and display advertising for revenue to the blog owner.

  7. […] I immediately associate “Keith” Murdoch with the legendary Australian media baron Sir Keith, father of contemporary global media tycoon […]

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