Recently, I had discussion with a member of the food blogging community about using someone else's recipes or photos on your blog. I thought it was o.k. to "borrow" as long as I gave credit and a link back to their blog or website. I was told "borrowing even with attribution" wasn't cool. Yet others had told me the opposite. So I was anxious to hear what the experts would say about this at BlogHer07 conference.
After attending The Art of Foodblogging and live blogging at the Professional Blogging: Art and Commerce session, I was still confused. So I asked Denise Howell of Lawgarithms, Between Lawyers, and Bag and Baggage, and Elise Bauer of Simply Recipes for some clarification.
When is it o.k. to use someone else's stuff (assuming that you give full credit and a link)?
Elise's response:
From my understanding, you just need to promptly take down a photo from a website if the copyright owner complains to you.My point is that the creator of the photo is the holder of the photo's copyright. Photos are protected by US copyright law, unlike recipes. So, if you find someone else using your photo, and you don't want them to, you can request that they remove the photo and they must comply with that request.
If you have a website and are using someone else's photo without getting their permission first, generally it will not be a problem if you are giving them credit for the photo, and linking to their website. Usually in these circumstances the photo owner will not ask you to take it down. But if they do, then you must comply.
Denise's response:
It's a strange technical distinction, I realize. The Perfect 10 v. Google case found there was no direct copyright infringement in inline linking to, and displaying, an image residing on another's server.
There's a difference between what Google does, though, and leeching bandwidth or "copyjacking" as another lawyer (Erik Heels) has recently called it.
If you're inline linking with attribution, presumably you would fall under the logic of the Ninth Circuit's Perfect 10 v. Google decision. Other circuits may or may not follow this decision; that remains to be seen. For now, it is the most on-point and persuasive U.S. legal authority.
If, on the other hand, you're copying an image, hosting it on your own server (or a server other than the one where you found it), and displaying it, you're outside of the Ninth Circuit's reasoning and perhaps engaging in infringement (unless it's a fair use; thumbnails may or may not be a fair use; see below).
The Perfect 10 v. Google case has not been specifically applied to a blog. The Perfect 10 case (and the earlier Kelly v. Arriba Soft case on which it relies) also found that a search engine's copying and display of thumbnail images constituted fair use, but again, this has not been applied to a blog (and there is much discussion in the two decisions tying their conclusions to the social benefit derived specifically from search engines).
Elise is right in urging caution, despite what the law on inline linking seems to be, as no one wants to be the test case. It's thus a good "belt and suspenders" approach to always get permission even if you're inline linking with attribution, or alternatively, to use a photo that is in the public domain or licensed for the use you intend.
Other Resources:
Some posts on copyjacking, copyright, embedding, inline/hot linking, etc. from Denise:
Food Blog S'cool - information on how to get people to stop using your photos and content without permission - see side bar and copyright pull down menu
Problogger - Copyright and Blogs - 14 Guidelines, Cooking Up a Storm Over Blog Copyright, and Keeping it Legal
UDPATE: Denise and Elise have also left comments below.
