If I had a photograph or two: Fair use of product photos on review sites
October 27, 2014 11:21 PM   Subscribe

I've had an idea for a product review site and am trying to discern whether product photographs can be legally reproduced on the website, from where fair-use photographs should be obtained and how, if at all, they should be attributed.

How can and do review sites legally use professional product photos in their reviews? And does it matter who is uploading these photos: the site or the users/reviewers? Must professional product photos be attributed somehow (to the company, to the photographer)?

A Google search tells me that review sites generally fall under the fair use terms of copyright law (e.g., here) and so professional product photos should be ok. But could there be instances where it is NOT ok on a review website?

My review site wouldn't sell the products directly, but might have ads on it related to the product category or ads for companies that do sell the product. So in theory I would make money, but not from the photographs themselves.

And finally, would it matter where my "business" is registered/located in the world? Imagine English-speaking countries as possible locations for the business.

Thanks in advance for any and all food for thought.
posted by Halo in reverse to Computers & Internet (8 answers total)
 
Why not write to the good people at Wirecutter.com and ask?

I would be very careful about Fair Use. It's not as simple as "I'm not making money," or "I'm reviewing the product."
posted by chesty_a_arthur at 2:29 AM on October 28, 2014


I feel kind of stupid asking this because I'm sure there's a reason why but if you're reviewing the products themselves how hard would it be to just photograph them yourself?

Setting up a small tabletop "studio" to photograph things is apparently pretty easy.
posted by Gev at 5:14 AM on October 28, 2014 [2 favorites]


You shouldn't get in trouble for this as long as you make sure any photos that you swipe for your own site are provided by the manufacturer. They are highly unlikely to be upset about you republishing their marketing photos to generate online buzz for their product. (I suppose they could get bent out of shape about it if you trash the product, claiming that your reproduction of the photos is an infringing use, but it still seems unlikely.) I would not recommend swiping photos from other review sites, which would be bad form as well as actionable copyright infringement but, more importantly, would make you look like an amateur.

Anyway, what you really should do is reach out to the manufacturer of the product you're reviewing. Figure out who does their PR (searching PR Newswire, BusinessWire and similar services can sometimes help with this) or reach out to someone in marketing directly. Tell them you're planning a product review and ask if they could provide images to go with. Any company that's at all serious about marketing and PR will have high-quality images for use by press. When the review is published, send that person a link. This plants seeds so that if your site is successful, you may eventually be clued in to new products that are coming out and potentially get offered loaners for review.

As Gev says, taking pictures yourself is also an option and, if you're any good at it, can make your site look legit and differentiate you from the competition. It depends on the type of product, really.
posted by Mothlight at 8:14 AM on October 28, 2014 [1 favorite]


Usual IANAL, TINLA disclaimer, etc etc.

am trying to discern whether product photographs can be legally reproduced on the website,

In general, I think it's a good idea to learn about copyright straight from the horse's mouth, so to speak, by looking at the U.S. government's copyright office website. They've got a lot of FAQ & publications explaining aspects of copyright law & practices in plain English.

But could there be instances where it is NOT ok on a review website?

Yes, but, as the website you linked to says, "there are limits and only a court has the final decision-making ability." IOW, the law itself is not particularly detailed on what is or is not "fair use"; it has established a general guideline and framework to consider fair use exceptions, and after that it's all examined on a case-by-case basis in civil court. A lawyer versed in intellectual property law may be able to tell you about court cases that have established precedents, but in practice you may not know if someone thinks you've violated their copyright until & unless you get a takedown notice/cease-and-desist letter/threats of a lawsuit.

Must professional product photos be attributed somehow (to the company, to the photographer)?

It's the copyright owner who gets the attribution - exactly who that is can depend on the conditions and contract terms under which the image was created. And I think whether attribution is necessary can depend on both the original terms of creation and the terms under which you get access to the pictures.

And does it matter who is uploading these photos: the site or the users/reviewers?

I'm not quite 100% sure what you mean by this, but to the best of my knowledge if it's your site created & maintained by you, hosted on servers you own or are paying for space on, you are the one responsible for everything on the site; if there's any kind of copyright violation it's you they're going to contact. You can't just shrug your shoulders and say, "hey it was a guest reviewer who put that picture up, I had nothing to do with it." It's your site, the buck stops with you.

from where fair-use photographs should be obtained and how

I think directly from the manufacturer would be your best route. I know companies often have freely available images for use in retailers' advertisements, and it seems likely that they'd also be OK with those images being used in reviews, at least as long as you ask first.

Looking through some of the publications (both online and dead-tree) I regularly check out, most of the professional pictures of gear reviewed don't seem to have specific attribution, unless it's a picture clearly taken by the publication of the gear actually being used during the course of the review. Which implies to me that the publications get most of their images of stuff they review as a stock photo directly from the manufacturer, created for the purpose of being used in reviews & ads.

My review site wouldn't sell the products directly, but might have ads on it related to the product category or ads for companies that do sell the product. So in theory I would make money, but not from the photographs themselves.

As far as I can tell (although, again, IANAL), this is exactly the kind of thing that can come into play in court in considering a specific claim of copyright violation, but that you won't necessarily find specifically spelled out in the law. Check out the "Effect upon work's value" section of the Wikipedia article on "Fair Use."

would it matter where my "business" is registered/located in the world? Imagine English-speaking countries as possible locations for the business.

Not so far as I can tell. I think pretty much any of the countries you're considering are signatories of the Berne Convention, which has created some general principles, but which primarily establishes that:
"Works originating in one of the Contracting States (that is, works the author of which is a national of such a State or works first published in such a State) must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals (principle of "national treatment")"
(from the Berne Convention summary page of the World International Property Organization)

IOW, if someone in England thinks that you've violated their copyright, you'll have to deal with this in the context of English laws and courts, even if your site is hosted and based in the U.S.
posted by soundguy99 at 8:53 AM on October 28, 2014


If you're reviewing products, don't companies tend to release photos of their products publicly? If a New York Times photographer took a photo of the new iPhone at an unveiling event, no you couldn't take that. But a photo of an iPhone from Apple's website? I'm not a lawyer, but I'm pretty sure that's fine. That would fall under promotional materials that the company wants you to use.

I'm guessing mainstream review sites either use free promotional materials from press kits or they subscribe to a photo wire service like Getty so they can use the photos. Either way, taking photos of products is probably fine.
posted by AppleTurnover at 10:15 AM on October 28, 2014


Thanks for the answers so far. A point of clarification: I wouldn't be the reviewer. There would be a community of reviewers, such as at, for example, Makeupalley.com.
posted by Halo in reverse at 11:15 AM on October 28, 2014


You can often download press kits with photos directly form the manufacturer. Your use is exactly what the photos are intended for. You will be fine as long as you aren't taking photos from other review sites or from photographers. You either need to take the photos your self or use the ones created by the company.
posted by cjorgensen at 12:44 PM on October 28, 2014


IANAL.
Keep in mind that Fair Use is only a defense you can use during a lawsuit. If the copyright holder of the photo decides to sue you, they can, and after a potentially expensive legal battle, you'd either win with the Fair Use defense (but still be out attorney's fees), or you'd lose (and be out both attorney's fees and whatever sanctions are awarded the plaintiff). So be careful about waving around Fair Use as a magic wand that will defend you from infringement.

If you want to be absolutely sure about things, get permission in writing from whoever owns the photo you want to use--and yes, this includes the manufacturer; if they don't like your review, having a photo that belongs to them on the review could increase the likelihood of a lawsuit if you didn't get that written permission.

Honestly though, if you're reviewing things, I'd be highly skeptical of a review site that couldn't produce their own photos of the things they're reviewing.
posted by Aleyn at 5:53 PM on October 28, 2014


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