Sometimes overexposure is costly

The May/June 2005 issue of American Photo tells the story of photographer Naomi Harris and her website. She was hit with a $3,000 bill in overage charges after a popular soft-core porn blog misappropriated one of her images and linked to her site.

Blogs have become ever-more commercialized - Fleshbot, for instance, is a profitable site and is one of several owned by Gawker Media - and photographers have begun to complain in industry forums about instances in which their images have been used by various sites without permission. The copyright act protects such usage if it can be said to comment on the imagery as a work of art.

Okay, I'll bite. It is a little more complicated than that. Yes, there is such a thing as "fair use" (17 USC Sec. 107) in the copyright act.

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Section 107 provides four guiding factors for a court to use in determining whether a use is fair or not:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

You know lawyers, the answer to the the fair use question is not easy. Here's some resources for you to consider:

• The Chilling Effects website has a pretty extensive FAQ on Copyright and Fair Use;
• The Guiding Rights Blog has some excellent posts on fair use;
• Copyfight on Blogging Copyright Infringement.