Copyright: Using stock images vs. reviewer’s images on a review site?
June 12, 2020 3:15 AM   Subscribe

I just joined an online tarot forum that maintains a database of resources (Deck Library), where users can post their reviews of items they own and use. The database is sparsely populated compared to the number of resources available on the market. When I asked why, one of the reasons given was that users had to post their own photo of cards from the deck they were reviewing, rather than using stock images created by the publisher. This raised a two-part question in my mind:

1. Isn’t using copyrighted images of a product for the purpose of review generally acceptable vis a vis copyright law (in the United States)? Popular electronics review sites (for example) appear use stock images from the manufacturer without a problem.

2. Even if the reviewer creates their own photograph or scan of the item they’re reviewing, doesn’t that also invite a copyright question, since these are images of copyrighted artworks?

I understand that use of copyrighted material for review is governed by the Fair Use clause of Title 17, and that interpretation of this is complicated. My goal is to go back to the owners of the forum with some real-life examples, and ask them to change their rule to make gathering information for the database easier.

And yes, I know you’re not my lawyer, etc. If anyone has either first-hand experience with a very similar situation or general knowledge of copyright regulations as applied to public reviews, that would be helpful.
posted by turtlegirl to Law & Government (6 answers total)
Ownership of images and Copyright ownership of what the image is OF are two separate things. So while it’s fair use to use your own photograph to create an excerpt of a deck for review purposes, using someone else’s photo for the same use is problematic. You don’t know who owns the photo or what the licensing agreement is, so the safe and legal path here is not to allow use of any photo other than users’ own work.
posted by rikschell at 4:38 AM on June 12, 2020

I have to respectfully disagree with the answer above. Assuming you're talking about a direct (head on) image of the card, the copyright that matters is in the card, not the photograph of it. (In the US, the best analogy is that we generally don't protect a separate copyright in a direct photographic documentation of an underlying art piece. This is discussed in Bridgeman).

So, if you have a legitimate fair use argument for using an image of the card in the critique or review, and you're using a direct image of the card, rather than, say, a staged photograph of an artistically arranged deck of cards, there is no difference who took the photo (reviewer or stranger). Here's a discussion of fair use

That being said, it can still be fair use if you're using a more artistic photo of the card. There is no separate "ownership of images." That's copyright law. And so, in the more artistic image of the cards, there might be an additional copyright owner (the photographer also, rather just than the illustrator of the card itself), it doesn't mean that you can't rely on fair use. For a more in-depth dive into fair use for analytic writing (like a review or critique) see this Best Practices in Fair Use for the Visual Arts, here.

Finally, there might be a small difference in the risk of complaints, in the sense that Tin Eye or another reverse image search might more readily detect the commercial photos. That doesn't mean your use is less fair, but it might mean you get a complaint. That being said, I would assume that mostly illustrators want reviews, so complaining is counterproductive. (And whether or not an author disagrees doesn't matter - a core purpose of fair use is to enable the First Amendment protections to effectively speak about something - recognizing that you may need to include the critiqued article to make that speech useful.)
posted by mercredi at 5:46 AM on June 12, 2020

Was the purpose of using reviewer-generated photos given as being about copyright?

Or is it a "this is what the product actually looks like when you get it" element of their reviews?
posted by wellifyouinsist at 5:52 AM on June 12, 2020

Response by poster: wellifyouinsist: Was the purpose of using reviewer-generated photos given as being about copyright?
Or is it a "this is what the product actually looks like when you get it" element of their reviews?

The reason given by one of the admins was to avoid copyright issues. But it's also helpful to have non-stock photos in order to point out features (or problems) that aren't apparent otherwise.
posted by turtlegirl at 10:52 AM on June 12, 2020

Response by poster: Thank you for your help with this, folks. As with all copyright questions there's a lot to think about, and you have given some helpful, specific insights.
posted by turtlegirl at 10:54 AM on June 12, 2020

avoid copyright issues

There may well be a strong element of “avoiding any possible hint of trouble” in play here - “Fair Use” is mostly a defense in a civil lawsuit, there isn’t, like, a National Board of Copyright Determination or anything. The forum owners & admins may feel they just don’t have the resources to battle copyright violation claims via the legal system even if the images used would likely be considered “fair use.”
posted by soundguy99 at 1:42 PM on June 12, 2020

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