Using someone else's artwork in a marketing email

[shadcallister]

Many authors collect images which they haven't licensed, for personal use-- concept art, mood boards, and the like. Some do it publicly on Pinterest, but since they don't profit from it it's Fair Use, as far as I understand.

But if I wanted to include a piece of art I found on Deviantart in one of my emails to my mailing list, what kind of licensing or permission would I need?

I guess it's the same question as posting it on a blog. But this isn't from a stock photo site and it can be very difficult to determine licensing requirements if the site or the specific artist hasn't marked it with a CC license or anything. If you're not using the art in ad creative or as cover art/online packaging, but more as a "look what I found isn't this neat" for readers, does it require negotiating a single-use license with the artist?

I guess I could just link to the Deviantart page, or collect the image on a Pinterest board and then link to that. Is there a difference if it's a headshot of a movie star from IMDB, versus artwork by an Deviantart artist?

So confusing...

[Bill Hiatt]

Rule of thumb: don't use anyone's art without permission in a public way. Pinterest may be an exceptional case because of the way it links back to the original source.

The images I use on my website are all licensed, as are the ones I use in email. That's because use for commercial purposes is far less likely to be deemed as fair use. So is use of images where an easy licensing mechanism is available. Fair use gives some latitude in some situations, but I don't think what you're talking about falls into any of the zones where fair use exists.

So yes, if you see something you want to use on Deviant Art, if there is no standard licensing language such as CC associated with it, either contact the artist for permission or don't use it.

"Safety first!"

[Bill Hiatt]

More info: https://www.copyright.gov/fair-use/more-info.html

Notice that one of the criteria involves the amount of the original being used. One can quote briefly from a novel, for example, and only be using a small amount. When you replicate an image, you're using the whole thing, and that also makes it more difficult to claim fair use.

I had to fight this battle all the time with my students. Something in PowerPoints for classroom use would be considered fair use because of  the educational purpose, especially since the material isn't being distributed publicly, but one would always needs to cite a source to be able to claim fair use. Students understood that with text but scooped up images all the time without attribution without thinking twice about it. Those same students might easily have made the mistake later of scooping up images for something commercial in the future.

How would you feel if someone found a short story of yours, liked it, and reproduced it in a newsletter as a "look what I found isn't this neat" feature? Because that's how some artists would feel about your use of their artwork in the same way.

[Post-Crisis D]

Pinterest may be an exceptional case because of the way it links back to the original source.

Linking to the original source does not make it okay.  The only reason Pinterest gets away with it is because they are protected by safe harbor laws since the content is uploaded by users.  It's up to copyright holders to find their images being used on Pinterest and then issue DMCA takedown notices which can be a full-time job given the rampant copyright infringement on sites like Pinterest, Facebook, etc.

Heck, people'll upload images with the copyright notice right on them. 

[Bill Hiatt]

Pinterest may be an exceptional case because of the way it links back to the original source.

Linking to the original source does not make it okay.  The only reason Pinterest gets away with it is because they are protected by safe harbor laws since the content is uploaded by users.  It's up to copyright holders to find their images being used on Pinterest and then issue DMCA takedown notices which can be a full-time job given the rampant copyright infringement on sites like Pinterest, Facebook, etc.

Heck, people'll upload images with the copyright notice right on them. 

Ah, good clarification. I haven't used Pinterest that much, so I wasn't familiar with how it worked. It's been so long that I think I was visualizing it as working a little bit like links on FB (You just paste a link, and the featured image of the linked post appears.) I didn't recall having to upload images. In that case, of course there'd by copyright issues.

I use FB a lot, but all the images I upload are stock photos I've licensed.

[shadcallister]

So is it technically a copyright infringement to post something on a public-facing Pinterest board that you don't own rights to? I figured if you're not making money off it, it would be counted more like a Google image search result. But I suppose Pinterest is making money off it in some measure, even if the user isn't, and as I recall Google recently had to make some changes as well to the depth of content they can show before they make you click through to the source site.

Anyway, I am definitely a pay-the-artist kind of guy (thousands of dollars' worth last year...), so probably safer to just link to the artist's page so he/she retains control of access to the work.

[Post-Crisis D]

Ah, good clarification. I haven't used Pinterest that much, so I wasn't familiar with how it worked. It's been so long that I think I was visualizing it as working a little bit like links on FB (You just paste a link, and the featured image of the linked post appears.) I didn't recall having to upload images. In that case, of course there'd by copyright issues.

Either the users upload images or Pinterest uploads the images to their servers when users give a URL.  I don't know how it works either.  I only know because there are images of mine on there that I did not upload and the images are being hosted on Pinterest's servers.  (I didn't upload them nor do I have a "Pin It!" feature on my site.)

[Post-Crisis D]

So is it technically a copyright infringement to post something on a public-facing Pinterest board that you don't own rights to?

I am not a lawyer, but I'm pretty sure the answer is pretty much.  As you can see from Bill's link, "Fair Use" is pretty narrow in scope.  A lot of copyright infringement happens and no one is ever held to account, largely because it's often so rampant, especially online, that it's rarely worth the time and effort tracking down every infringement and issuing DMCA takedown notices or suing over it.  Usually (but not always) lawsuits are reserved for the more egregious infringements.

When in doubt, get permission.

[Bill Hiatt]

So is it technically a copyright infringement to post something on a public-facing Pinterest board that you don't own rights to?

I am not a lawyer, but I'm pretty sure the answer is pretty much.  As you can see from Bill's link, "Fair Use" is pretty narrow in scope.  A lot of copyright infringement happens and no one is ever held to account, largely because it's often so rampant, especially online, that it's rarely worth the time and effort tracking down every infringement and issuing DMCA takedown notices or suing over it.  Usually (but not always) lawsuits are reserved for the more egregious infringements.

When in doubt, get permission.

I'm a "When in doubt, get permission" kind of guy, too. You never know when someone having a bad day would decide that an example needs to be made of a copyright violator. And as creators ourselves, we should be as sensitive to the creations of others as we want them to be to ours.

[Bill Hiatt]

What do you know? Here's an article on Pinterest and copyright. https://turbofuture.com/internet/how-to-use-pinterest-copyright-legally

For the most part, I've pinned things like my own covers or covers of other authors eager to have their stuff shared. I've never thought about repins, though. I'll have to check and see if I've inadvertently repinned something I shouldn't. (Or perhaps just delete my account. I don't think I've even logged in in a couple of years.

[DrewMcGunn]

By and large, I use public domain artwork. The one time I used a copyrighted picture, the photographer had provided fair-use guidelines on wikicommons and I followed it to the tee.

But I fall on the side of ask permission is less costly than begging forgiveness, in the long run.

[dikim]

Never use someone else's artwork without permission. It can end up being very expensive. Also we need to respect the copyright laws that we rely on for our own income. Think how you would feel if someone included your entire novel in their newsletter.

I find https://pixabay.com/ really useful for illustrating posts on my website and on twitter. All the images have been put up by people who are happy for them to be used without charge. But be careful. The top line are Shutterstock images that have to be paid for.

[Lysmata Debelius]

I just want to add that, when you are trying to figure out intellectual property rights and copyright issues it's not relevant whether or not you'll be making money from a project. Some people seem to argue that as long as you attribute the creator of the work, all is well, and that if you're not making money from it, they can't really complain. The thing is, that writer/musician/ artist might not want their work to be associated with your project. Maybe they have religious, political, or just plain personal reasons why they don't want their image / song / poem or whatever used for a particular purpose. And since they are the creator of that work, they get to decide. You really have to get permission, even if you are not making money from something.

[Post-Crisis D]

I find https://pixabay.com/ really useful for illustrating posts on my website and on twitter. All the images have been put up by people who are happy for them to be used without charge.

Assuming, of course, that the person who uploaded the image actually holds the copyright to it.

[Bill Hiatt]

I find https://pixabay.com/ really useful for illustrating posts on my website and on twitter. All the images have been put up by people who are happy for them to be used without charge.

Assuming, of course, that the person who uploaded the image actually holds the copyright to it.

Another good point! One needs to be sure the site checks material to make sure it's being posted by a rights holder.

[shadcallister]

Just saw this fairly exhaustive rundown of the subject by a lawyer, worth a look for anyone with questions about the boundaries around fair use etc.:

https://www.sidebarsaturdays.com/2019/03/30/httpwp-mep7vddb-se/

[bardsandsages]

As has been said, whether or not you make money has no bearing on copyright. Copyright is a form of property. The owner of the property has the legal right to determine who gets to use it. If someone takes my car without permission, they can't just say, "Gee, it isn't like I was making money driving it. And I even washed it when I returned it!" They still took my car without permission. The police are gonna still consider it theft (though they might laugh that the dude washed it...but you get my point.)

Every single author publishing in the U.S. should visit copyright.gov and spend the time reading the laws, particularly the section on fair use. It actually is not all that complicated. We make it complicated because we focus more on what we want than considering what the author/creator might want. And at the end of the day, only the creator of a work has the right to make decisions about the work.


https://bardsandsages.com/juliedawson/?p=1169

[C. Gockel]

Write the artist! They'll often say yes, and they may have a specific link they'd like you to use for the attribution. I did that for an artist one time, and he allowed me to put the first panel of his cartoon into my email and on FB with a link to a place where my fans could buy mugs / tee-shirts.