Is the Unauthorized Use of Your Photograph Fair?

Some people use your photographs for educational or newsworthy purposes without authorization and claim it as “fair use.” The doctrine of fair use means that copying will not infringe a copyright when it is “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.” That might make you think that schools and newspapers can use your photos at will. But it’s not that simple.

Four factors are considered to determine whether the use of a photograph qualifies for fair use:

– The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit or for educational purposes;
– The nature of the copyrighted work;
– The amount and substantiality of the copyrighted material that is used; and
– The effect of the use upon the potential market for or value of the copyrighted work.

All four (as indicated by the “and” before the last factor) are considered by a court to determine whether a use is fair.

In July, a federal court in Massachusetts determined that CBS news’ use of Christopher Fitzgerald’s photograph of Stephen Flemmi being arrested was not fair use. A summary and analysis of the case written by Fitzgerald’s attorneys is found at

However, some courts have found fair use when a photograph has been used by news organizations. See my October 6, 2006, blog on Chris Harris’ case for an example.

It is always a judgment call until a court gives a final ruling whether the use of a photograph is fair. But if you find your photo has been used without your permission and the defense is “fair use,” don’t be too quick to accept that answer.

Take my advice; get professional help.

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