
Ask HN: Does reposting someone's photo with additional info fall under Fair Use? - _jdams
For context: 
If I created a blog&#x2F;website that reposted images of computer setups and stated what brand of desk, case, keyboard, mouse, etc. were being displayed in the shot, would I fall under Fair Use?<p>Would you recommend I provide attribution to the company and&#x2F;or Internet User who created the original image? (And even a link to the original owner&#x27;s post if available)<p>- What about if I do not know who the original owner is? Should I stay away from that image and find another, then?<p>EDIT:
Probably an important, missing detail. If the site was profiting in some way, such as affiliate links to the products being identified, does that change the legality of my endeavor?
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smacktoward
_Obligatory disclaimer: I am not a lawyer; this is not legal advice. You
should consult an attorney for more definitive answers, especially if you are
considering undertaking this as part of a business._

The short answer is "it depends, but probably not."

There are four tests that are applied by courts to determine if a particular
use of a copyrighted work falls under the Fair Use doctrine or not (see
[https://copyright.columbia.edu/basics/fair-
use.html](https://copyright.columbia.edu/basics/fair-use.html) for an
overview). Under these tests, your scenario has some positive angles, but more
negative ones.

 _1\. Purpose and character of the use._ Generally speaking, commercial use of
a work is granted less fair use leeway than non-commercial use, for the
obvious reason that reproducing someone else's work for profit is more
damaging to the interests of the creator of the original than reproducing it
to comment on it or to use it as a teaching aid. Fair use is intended to
protect reviewers, journalists and educators, not people who just grab other
people's work and then monetize it.

There is a wrinkle here, though, in that one type of use that courts have
looked favorably upon in the past is the kind they deem "transformative" \--
where the person reproducing it goes beyond simple reproduction to add new
value or meaning to it. Taking an uncaptioned image and (accurately)
cataloging the types of hardware in it could, therefore, potentially be
considered a transformative use. But it'd be on safer ground if the catalog of
hardware wasn't full of affiliate links.

 _2\. Nature of the work._ This just means that some things are more public
than others, and the more public something is, the friendlier it is to claims
of fair use if it's reproduced. The Louvre puts the _Mona Lisa_ on public
display, so it would be hard for them to argue that it's unfair for people to
take pictures of it. But if you steal my private journal and start
distributing copies, you'd have a hard time claiming fair use as a defense
even if you give the copies away for free.

So a big question here would be, where are the original images coming from?
Are they being posted to public or private fora? Would the people who created
them have a reasonable expectation that they could be found and viewed by the
general public?

 _3\. Amount or substantiality._ What this means is, the less of a particular
work you reproduce, the easier it would be to claim that your reproduction is
fair use. This is why book reviews can excerpt a paragraph or two from the
book, and movie reviews can include a brief clip -- because doing so enhances
the value of their commentary, but nobody is going to think they've seen the
movie or read the book (and therefore not pay the original creator) just
because they were exposed to those excerpts. The closer the length of the
excerpt approaches the total length of the original work, the more likely that
is to happen, though, so the ability to claim fair use declines accordingly.

In your case, it sounds like you'd be using the entire image, so you'd be on
tricky ground. You could try to improve your legal position by cropping out
everything that isn't computer hardware, but images generally aren't that big
to begin with so you'd likely still be reproducing most of the original work.

 _4\. Effect on the market for the original._ In other words: if someone
interested in the original is exposed to the reproduction, how completely does
it satisfy their interest? This is why sharing movies and songs online doesn't
count as fair use; if I can get a 100% complete and accurate copy of that song
from you for free, I have zero need to pay the creator of the original work.
And if _anyone_ can get that copy from you, you've completely killed the
market for the original.

(If this seems like it's related to amount or substantiality, it is; the
closer you get to reproducing 100% of the original work, the greater the
impact on the market for that original work is likely to be.)

Here you'd have the same issues as you have with #3 above, with one caveat --
the source of the images would matter quite a bit. If you're reproducing
people's personal photos, arguably the "market" for those is non-existent to
begin with (e.g. nobody's ever going to buy them), so you'd have more of an
argument than you would if you, say, grabbed a bunch of images from
Shutterstock, removed the watermarks and used those.

 _Other things to consider_

1\. For some reason, lots of people think that attribution is a big factor in
whether something is fair use or not. As you can see above, it really doesn't
matter that much. If I put a full-length FLAC copy of Drake's latest album up
on the web as a free download, putting it behind a link that says "this album
is by Drake" doesn't magically make it fair use. Neither do disclaimers or
attestations of pure intent ("I don't own the copyright on this, I'm just
sharing it for personal use", etc.) of the kind you see all over YouTube.

2\. The above all assumes that you're talking about copyrighted images. The
vast majority of images _are_ copyrighted, of course, because creators (in the
USA, anyway) get copyright on their work simply by the act of creating it. Not
_all_ images are copyrighted, though; some are in the public domain, including
all works created by the U.S. government, and with those you can do anything
you want. And in other cases, creators choose to voluntarily waive some of
their copyright rights on a work in order to improve its distribution; an
example of this would be works published under Creative Commons licenses,
which specifically permit reproduction and some other uses as long as you
comply with the terms the license specifies. See
[https://creativecommons.org/use-remix/](https://creativecommons.org/use-
remix/) for more info on that.

