Is only using a portion of a photo or an altered photo fair use?

croppedphotoCC0An image that results from cropping or altering a photograph may qualify as fair use, or it may constitute copyright infringement. Unfortunately, there is no way to know for sure other than to have the issue ruled on by a federal court. These are the factors a court considers in deciding whether a particular use is fair:

  1. the purpose and character of the use;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used; and
  4. the effect of the use upon the potential market.

In many cases, courts focus primarily on whether the purpose and character of the use is sufficiently transformative. The effect on the value of or market for the original work is also a significant factor for many courts.

Two similar cases with different results illustrate the fact that there is no substitute for a case-by-case analysis.

In the case of Kienitz v. Sconnie Nation LLC [1], the U.S. Court of Appeals for the Seventh Circuit found that the alteration below was fair use.

Kienitz v. Sconnie Nation LLC

In the case of Shepard Fairey’s alteration of an Associated Press photo for the iconic Obama Hope poster, Fairey argued fair use, but a federal judge urged settlement, stating that “whether it’s sooner or later, The Associated Press is going to win” the case.

Shepard Fairey Associated Press

  1. Kienitz v. Sconnie Nation LLC, 766 F. 3d 756 (7th Cir. 2006).

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