Last week the final judgment was entered by United States District Court Judge William Alsup in favor of Google following a jury trial in its long running legal battle with Oracle over Google’s use of bits of the JAVA programming language in Google’s Android smartphones. With a single check mark on a verdict form, the jury in Oracle America Inc. v. Google Inc. (United States District Court for the Northern District of California, Case No. C 10-03561 WHA) found that Google’s use of certain JAVA components was “fair use.”

For six long years Google and Oracle had locked horns, including an earlier trial and trip up to the United States Supreme Court. Oracle, the owner of the JAVA programming language developed by Sun Microsystems, sought more than $9 billion dollars in damages, claiming that internet giant Google’s mobile smartphone operating system, Android, infringed portions of JAVA.

Oracle’s copyright claims included the contention that the Android operating system improperly utilized the structure, sequence and organization of certain components of the JAVA programming code known as “APIs,” essentially modular chunks of software that serve as the interface to certain program libraries implementing different software functions. Use of such publicly available APIs, short for “application programming interface,” is common place in the software industry. On this issue, the question for the jury was whether or not the use of JAVA’s APIs by Google amount to fair use under the law.

It has been observed that the use of APIs is arguably not particularly transformative, an important consideration in deciding fair use (for a broad primer on the boundaries and rules of fair use under copyright law, see my earlier postings Google’s Effort to Digitize Millions of Books is Fair Use and Using “Borrowed” Images in Your Blog). On the other hand, the open source nature of JAVA and the functionality of APIs — standardized code modules designed to function as interfaces with other code — arguably mitigate in favor of a finding of fair use. The jury agreed and vindicated Google’s position that it was fairly building on industry standards and open source protocols.

Of course, the battle will rage on in the appellate courts when Oracle likely appeals. Followers of IP law may be treated to more musings on the law of fair use by Ninth Circuit or even the United States Supreme Court.  Stay tuned.

An engaging image, be it a photograph, line art or other graphic, can capture the reader’s attention and drive interest in an online post. Bloggers, especially, are well aware of the attention grabbing benefits of a great photograph or graphic.  And in striving to find just the right image, it is an oft expressed sentiment that an apparent harmless use of a graphic poached from some obscure corner of the internet is fair game.

Is it legal to use that photo of Superman you found in a quick Google search to illustrate your blog post about the best action superheroes of all time?  Or an image of Darth Vader in a post about the best villains?  The answer implicates a wide range of intellectual property rights governing the use of images.

The careful blogger must ask himself or herself a series of questions in order to get to the bottom of the propriety of using an image as part of an online blog post.

1. Is the image copyrighted?
2. Is the image in the public domain?
3. Is the image available for the intended use under a licensing scheme?
4. If someone has a copyright in the image, can its use be defended as “fair use?”
5. Does your intended use comply with your service provider’s guidelines?
6. Does the use of the image violate anyone’s trademark, tradedress, commercial use, publicity, privacy or other rights?

Let’s consider each of these questions further.

Is the image copyrighted?

Original works of authorship, including photographs or graphic designs, are subject to copyright protection under federal law. A survey of the law of copyright is beyond the scope of this post.  However, a basic familiarity with copyright law principles may be helpful in working through the questions raised by the use of images sourced from the internet.  A basic primer on copyright law is published by the U.S. Copyright Office: http://copyright.gov/circs/circ01.pdf.

The first question to ask yourself is do you know the original “author” of the image?  For photographs that implicates the original photographer.  Of course, ownership of the copyright might, for any number of different reasons, rest not with the original photographer, but with some other owner.

Realistically, the causal blogger is unlikely to know the source and current ownership of most photographs or graphic images found on the internet, as least to the extent they are found by a key word search through a search engine like Google Images. For most bloggers the hassle and expense of verifying ownership or tracking down an original author or current copyright owner and securing permission is, as a practical matter, prohibitive.

Effectively this means that much of the body of images that can be readily found on the internet should not be used by a blogger unless they fall into one of the categories below.

Is the image in the public domain?

Sometimes it is possible to ascertain that an image is in the public domain and not subject to copyright protection. A work might be in the public domain because its copyright expired long ago or it is outside of the scope of the copyright laws for some particular reason such as the owner of the copyright having released ownership rights.  This determination turns on the particulars of the image in question and, again, may present a problem for the casual blogger who does not have the ability or inclination to investigate and ascertain the source or history of the image.

Is the image available for the intended use under a licensing scheme?

Some copyrighted images may be available for use under a specific licensing scheme. Various organizations have created different licensing models for authors of works to make them available for use under various conditions.  For example, Creative Commons is a non-profit organization that has developed various forms of licenses that can be adopted by authors of works to permit those works to be used by others (see http://creativecommons.org).

When you pull an image governed by a specified licensing scheme, you need to be aware of the parameters of the use allowed and any requirements in connection with the use of the governing license. Many images can be found that are adequately tagged with information about the governing licenses and the extent of the use that can be made (for example, whether the image can be shared or altered and whether any attribution must be made to the original author).

For most causal bloggers, the easiest route to take is to source images from an online archive that provides images that are represented to be free and available for use, either under a Creative Commons license or as free public domain images. Developing a good list of online resources may well be the best starting point for the casual blogger.  See the following posting of online links to such image archives:

http://www.ragan.com/Main/Articles/49536.aspx?utm_medium=email&utm_source=Savicom&utm_campaign=1450796530.32507&utm_term=http%3A%2F%2Fwww.ragan.com%2FMain%2FArticles%2F49536.aspx

If someone has a copyright in the image, can its use be defended as “fair use?”

For a basic explanation of the concept of “fair use” see my recent blog post entitled Google’s Effort to Digitize Millions of Books is Fair Use. 

What constitutes fair use is an expansive topic and requires a case-by-case analysis and an evaluation of the following factors: (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.   See Mattel, Inc. v. Walking Mountain Productions (9th Cir. 2003) 353 F.3d 792, 800, citing Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc. (9th Cir. 1997) 109 F.3d at 1399–1404.

While the doctrine of fair use is nuanced and may even differ from jurisdiction to jurisdiction, some guidelines can be deduced from some of the leading authorities dealing with the law of fair use and copyrighted images:

• Exact reproduction of an unaltered copyrighted image in a blog is less likely to be found a fair use unless the use of the image in the context of the blog itself substantially furthers the purpose of critical commentary, news reporting, teaching, scholarship, research or other recognized fair use purpose such as parody and, in doing so, gives the image some new meaning or message.
• Editing and remixing the image into a new image which itself conveys meaning in relation to the accompanying blog will increase the likelihood of a finding of fair use.
• Attribution, while not by itself excusing infringement, will generally weigh in favor of a finding of fair use.
• If the purpose of the use of an image in a blog post is primarily non-commercial and the accompanying blog post is likely to be viewed as news reporting, opinion or commentary, a finding of fair use is more likely.
• Fair use is less likely where an image has already been used in another online news or blog forum and is only being repurposed in the infringer’s blog for the same purpose. A conflict with the nature of the owner’s use will mitigate against fair use.

Importantly, there are no hard and fast rules and just because a blogger might conclude that a use of a copyrighted image is “fair use” does not mean that the blogger cannot be sued by a copyright owner who alleges that the use exceeded the boundaries of use fair.  Any use runs the risk of a confrontation with an owner or purported owner of a copyright in the work.

While far oversimplified, the take away here is that the more transformative the use of the “borrowed” image is and the more the transformation serves a purpose that can be defended as being a legitimate, recognized aim of fair use—such as critical commentary—the more likely the use will be considered a fair use within the meaning of the copyright laws. On the other hand, merely cutting and pasting images into your blog from other sources reporting on similar content is much more likely to amount to copyright infringement.

Some instructive cases relating to the fair use of borrowed images include Cariou v. Prince (2d Cir. 2013) 714 F.3d 694, 708, cert. denied, 134 S. Ct. 618 (alteration and incorporation of original photographs in new work amounted to fair use as to those images that may reasonably be perceived to alter the originals with new expression and meaning), Sixto Nunez v. Caribbean International News Corp. (1st Cir. 2000) 235 F.3d 18, 22-23 (the republication in a newspaper of photographs taken for a modeling portfolio was transformative because the use of the photographs served to inform, as well as to entertain) and Perfect 10, Inc. v. Amazon.com, Inc. (9th Cir. 2007) 508 F.3d 1146 (online search engine’s display of thumbnail images of copyright owner’s photographs was fair use).

Does your intended use comply with your service provider’s guidelines?

Legal liability for copyright infringement is not the only, and perhaps even the chief, concern. The likelihood of a copyright infringement law suit may well be quite small in relation to the likelihood that your use of an image will draw a complaint to whatever service provider hosts your blog site.

Depending on the service provider, the blog may be subject to anything from the removal of the allegedly offending image (or post containing the image) all the way to deletion of the alleged offender’s account. Deletion of an account could result in the loss of valuable data for the blogger in addition to the obvious impact on the blog itself, including having to relocate to another provider.

Many service providers will act aggressively to try to avoid any allegation of liability for contributory copyright infringement and to utilize a certain “safe harbor” exemption provided by the Digital Millennium Copyright Act (“DMCA”). See 17 U.S.C. § 512(c)(1) (a service provider is not liable for certain relief for copyright infringement where “upon notification of claimed infringement … [the service provider] responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.”).  Under the DMCA, the service provider may require the removal (sometimes referred to as a “takedown”) of supposedly infringing material by the user (including a blogger with an account hosting a blog).

If your service provider has a formal, written policy about the use of images in blogs or other accounts hosted by the provider and the making of and responding to DMCA takedown notices, you should obtain and review a copy of that policy.

Does the use of the image violate anyone’s trademark, tradedress, commercial use, publicity, privacy or other rights?

This final question is a broad one that implicates many other areas of intellectual property rights and other areas of the law that are not addressed in depth here. Suffice it to say, that the blogger will want to do further homework if an image appears, on its face, to implicate any trademark, tradedress, commercial use, publicity, privacy or other similar rights.

Among the uses of an image that should raise concern are:

• Use of a person’s photograph or likeness so as to violate state or federal laws governing a person’s use and publicity rights in his or her own image or likeness. This is less likely to be a concern for bloggers whose posts are unlikely to be seen as seeking to imply an endorsement or support by person or celebrity featured in an accompanying image. However, the nature and content of a blog could impact that conclusion.
• Use of an image that violates a person’s privacy rights. You should avoid the use of a photograph of a person in non-public place or in a manner that arguably might be viewed as harassing or an invasion of a reasonable expectation of privacy.
• Use of a person’s photograph or likeness in a way that potentially opens up exposure to a claim that the use of the image is disparaging or damaging to a person’s reputation. Avoid, for example, the use of an image that arguably associates some untrue (or questionable) fact with a person or entity.
• Use of a company’s (or any owner’s) trademark or tradedress in an image. Such claims could be varied, depending on the nature of the use and the trademark or tradedress rights involved. For example, a blogger might want to use an image of the famous Nike “Swoosh” trademark as an image to accompany a blog post about the Nike company. As a general rule, use of a trademark to refer to or describe a particular company or product is likely to be considered a permissible, non-infringing use.  See 15 U.S.C. § 1115(b)(4) (trademark law recognizes a defense where the mark is used only “to describe the goods or services of [a] party…”); New Kids on the Block v. News America Publishing, Inc. (9th Cir. 1992) 971 F.2d 302, 306 (the “nominative fair use” doctrine may be a defense to trademark infringement in certain circumstances where the alleged infringer uses a trademark to refer to a particular product for purposes of comparison, criticism or a point of reference); see also Toyota Motor Sales, U.S.A., Inc. v. Tabari (9th Cir. 2010) 610 F.3d 1171 (holding that a car broker’s internet domain names, including “buy-a-lexus.com,” may be protected as nominative fair use because they describe the make of the cars being sold).  Still, in close cases, it may well be best to simply avoid the use of any image that appears to contain trademark protected material.  While the actual trademark status of certain imagery may not be apparent, the casual blogger will want to generally avoid any image with company branding, logos or names unless doing so is essential to reference the company, product or service that is the subject of the substantive content of the blog post itself (and there is no likelihood of confusion as to sponsorship or endorsement by the referenced entity).

In a recent decision handed down by the United States Court of Appeals for the Second Circuit, the court found that Google’s scanning of copyrighted books as part of its Library Project amounted to “fair use” and did not violate federal copyright law.

In The Authors Guild, et al. v. Google, Inc., Google was sued by a group of authors who alleged it violated their copyrights by making digital copies of their works. As part of the project, the plaintiff authors’ copyrighted books had been scanned without their permission by Google. The Authors Guild, et al. v. Google, Inc. (2d Cir. Oct. 16, 2015) No. 13-4829-CV, 2015 WL 6079426, at *2. Google then made them available for search by internet users who could access a “snippet” view through Google’s service.  This was done as part of Google’s Library Project, in which Google partnered with major research libraries to scan selected works from their collections.  Since 2004, Google has scanned more than 20 million books.  Some of those books are works in the public domain.  However, many are copyrighted.  Google’s service allows a copyright holder to exclude the work from “snippet” views by request.

After a proposed settlement was rejected by the federal district court, Google brought a motion for summary judgment on its fair use defense. In 2013, the federal district court granted Google’s motion, finding that Google’s project constituted fair use. In its recent decision, the Second Circuit upheld that ruling.

What is Fair Use?

The doctrine of fair use allows unauthorized copying of otherwise copyrighted works for certain limited purposes. The modern fair use doctrine is codified in Section 107 of the Copyright Act of 1976.  17 U.S.C. § 107.  The statute provides that “fair use” for purposes such as “criticism, comment, news reporting, teaching … scholarship, or research” is not an infringement of copyright.  The statute contains a list of various factors to be considered in determining if any given use is a protected fair use. Those factors include the “purpose and character of the use,” “the nature of the copyrighted work,” “the amount and substantiality of the portion used,” and the impact on the “the potential market for or value” of the copyrighted work.

The purpose and character of the purported fair use will weigh in favor of a finding of fair use where there is a “transformative use” that “communicates something new and different from the original or expands its utility…”  Authors Guild, supra, at *7.  In this case, the Court concluded that the making of a digital copy of copyrighted works to allow the sort of advanced search capabilities allowed by Google’s Library Project amounted to “a highly transformative purpose.”  Authors Guild, supra, at *8.

The Court observed that providing “tiny snippets” for view was designed to permit a researcher just enough context around a search term to evaluate whether the work was of relevance or not without “revealing so much as to threaten the author’s copyright interests.”  Authors Guild, supra, at *10. Interestingly, the court noted that it saw no reason to conclude that “Google’s overall profit motivation should prevail as a reason for denying fair use” in light of what the court viewed as a “highly convincing transformative purpose.”  Authors Guild, supra, at *11.

What Does the Decision Mean for Authors?

Authors or copyright holders with concerns about having portions of their works available for view through the Google’s Library Project should consider initiating the opt out procedure.  However, for many, the exposure and ease of search provided by Google’s service will outweigh any concerns over a “snippet” view available in the context of making the work searchable for online users.