About Fair Use of Text, Images and Photos for Websites and Blogs

As a web designer, blogger, content writer, journalist, teacher or comedian, you want to use stunning images, photos, quotes or statements that were created by others. When is it legal to use such content without asking permission or payment?

That is decided by “fair use”. In legal terms: “Fair use was created to allow use of copyright (sic) material for socially valuable purposes such as commentary, parody, news reporting, education and the like, without permission of the copyright holder.”

In plain English: “fair use” allows people or companies to use those materials (text, images, photos, etc.) without it being an infringement of copyright. In such cases, the owners of those copyrighted work must allow their work to be used by designers, bloggers, content writers, journalists, teachers, comedians, etc. without any legal or financial obligations. It must be noted that the burden of proof is the one using it; not the owner of the work. (In legalese: “affirmative defense”)

The reason for “fair use” is to allow reasonable and limited use of the copyrighted work. A journalist is allowed to quote from a newly published novel in the review it. A comedian can quote from copyrighted text, use a copyrighted picture or photo or directly quote a celebrity to make fun of them. Teachers and professors can use passages of copyrighted works to explain something to their students or to make a point.

As a rule of thumb, using text under “fair use” normally consists of using a small part of the copyrighted work and includes crediting the author (with a link to the source/author’s website). Fair use is for non–commercial purposes.

The criteria of what is “fair use” are defined in the opinion of the famous Joseph Story in Folsom v. Marsh, 9 F.Cas. 342 (1841). This so-called Four Factor test consist of:

1. the purpose and character of the use (non-commercial, educational, parody or non-profit)

2. the nature of the copyrighted work

3. the amount and substantiality of the portion used of the copyrighted work

4. the effect of the market use / market value of the copyrighted work

Facebook conducted a controversial study that manipulated users’ news feeds. Facebook did not only got negative reactions from its users, it also got on the wrong side of Cornell University.

Cornell University’s ethics board made clear that it did not pre-approve the study. Hence, Facebook should not have had “implied” user permission to conduct the study as researchers previously claimed.

To recap: researchers at Facebook tweaked what hundreds of thousands of users saw in their news feeds. They manipulated content to be more positive or negative than normal in an attempt to manipulate the users’ mood. The users’ status updates were analyzed to detect if the content affected what those users wrote on Facebook.

Not surprisingly, the researchers found that, Facebook users’ moods did indeed were affected by what they saw in their news feeds. Users who saw more negative posts would write more negative things on their own walls, and likewise for positive posts.

Enter Cornell. The University’s Institutional Review Board (IRB) did approve the use of Facebook’s “pre-existing data set” for the experiment. The study was published in the June 17 issue of Proceedings of the National Academy of Sciences. So far, so good.

However, Cornell University issued a statement clarifying that the Facebook experiment was conducted before the IRB was consulted. Although one of Cornell professors (Jeffrey Hancock) as well as a doctoral student (Jamie Guillory) worked with Facebook on the study, Cornell went out of its way to distance itself from the research.

A classic case of cold feet? Or does Cornell fear to be associated with a behemoth like Facebook? Or is it a matter of defending the ivory tower that it academia?