Fair Use Image Overview
Answering the age-old question: “what kinds of photos can I use?”
Because Presto Media does not hold a license with an agency like Getty Images, we rely on “fair use” images to select photos for many assignments.
The most important rule of fair use for you to commit to memory is that everything on the internet is copyrighted unless explicitly stated otherwise. Just because another publication uses an image doesn’t justify our use of it -- they could have a license with an agency, or quite simply could be breaking the law. Either way, we can’t justify our use of photos with the “everybody is doing it!” excuse.
That said, “fair use” can be a pretty gray area. Some image libraries, like Wikimedia Commons or Flickr explicitly show fair use licenses (public domain, requiring attribution, etc.). Outside of these libraries, sometimes a photo’s attribution or license can be hard to determine.
But there are plenty of ways to identify a non-fair use image at face value, and creative methods for finding entertaining, safe-to-use photos for an article.
Put on your detective hats and read on!
IMPORTANT NOTE: You assume responsibility on images that are required to be fair use. If you do not provide fair use images when required and the client gets slammed for it, that is your legal responsibility. Furthermore it's grounds for removal from Presto Media.
We are all here to create great content and get paid, but if you put our clients in jeopardy, then you are putting yourself, other Presto writers, and Presto itself at harm.
Navigating client expectations
Each client has unique expectations when it comes to image use. Some air very conservatively, and only want fair use images used. Others are not concerned with copyright violations and want you to use the best photos you can find on Google regardless of the potential consequences.
Here’s a quick cheat sheet for client expectations:
- In the client's Style Guide, there will be a section titled “FAIR USE IMAGES," and one of the following:
- If it says "No," then the writer is free to use whatever images will best fit the article and topic. The client is assuming the legal risk of using copyrighted images because they want relevant, contextual, high-quality images. Just avoid anything with a watermark, but otherwise, Google the best pics you can find.
- If it says "Yes," then you must follow the tactics in this guide to make sure you are using fair use photos. This means using photos from fair use libraries like Wikimedia Commons, Flickr, Pixabay, Google searching by license, though you can also use screenshots from movies and TV, images from social media (that aren't professionally shot) and more, as covered below.
- Some clients will say "Yes" or "No" or have a caveat or explanation that further clarifies what they want to see with images. An example is below:
The different kinds of photos and whether they’re safe to use
How you can tell: Stock photos are professionally staged photos of non-celebrities often used for marketing purposes. A typical stock photo is conceptual in nature, meaning that it evokes an idea. The examples above, clockwise from the upper left, represent concepts of “freedom,” “beauty,” “love,” and “business.”
When they’re good to use: Generally, stock photos are most effective in lifestyle articles. Topics might include relationship advice or personal success. Articles about real stories or celebrities shouldn’t use stock photos.
Are they safe? It depends where you get them, so air on the side of caution. Many stock photos will contain watermarks of some kind, like the following examples:
If an image contains a watermark, you cannot use it. You cannot crop out the watermark to get around this rule, either. Just avoid watermarks altogether in all images.
That said, filtering your Google search by “usage rights” can yield high-quality stock photos, and you can also find most of what you will need on public domain libraries like Pexels.com, Pixabay.com, PublicDomainPictures.net, Photopin.com or even Flickr.com.
Local News Photos
How you can tell: Local news publications typically use photos taken by local staff photographers. If a local news story is reporting on a crime, they may use mugshots taken by local law enforcement agencies. Local news stations may use photos from national photo agencies like Getty if they’re reporting on a story of national interest.
When they’re good to use: Typically, if the assignment calls for a narrative listicle rewrite of a human interest story, you might need to use photos from social media accounts associated with the story or local news stations, including screencaps from local news reports.
Are they safe? It depends. Any image used by a local news station that was taken by a national photo agency like Getty is not safe to use (they will be credited beneath the photo to the agency, and usually copyrighted). If a photo was taken by a local news station, it is still copyrighted, and unsafe to use even if you credit the station. If the photo is a mugshot, it’s okay to use because any photo taken by a government official or agency is considered public domain. If it’s a screencap of a local news report, it is practically safe to use, since a screencap of a video can be interpreted as an original work. In summation:
- National photo agency: UNSAFE
- Local news photographer: UNSAFE
- Mugshot/gov’t photo: SAFE
- Screencap: SAFE
Photos from social media
How you can tell: Photos from social media platforms like Facebook, Twitter or Instagram tend to lack any sort of professional lighting, and are grainier than professional photos. They also tend to be more informal and candid. Think of your own social media habits -- you take selfies, pose with friends, and take pictures of anything you might find funny or interesting when you’re out and about or at home.
When they’re good to use: Photos from celebrity accounts can supplement entertainment articles because they show a softer side to the stars. Many narrative lists or news stories will have images from social media accounts -- think animal rescue stories or stories about seemingly normal people who became criminals.
Are they safe? They are technically copyrighted, but it has become a fairly standard practice in publishing to use them liberally. There are caveats, though. Some social media platforms like Pinterest will collect images that are not fair use. It’s okay for Pinterest users to post non-fair use pics, but not for us to take them and blame Pinterest, because Pinterest is not a publication. Celebrities may also post sneak peek images from a photoshoot to their Instagram accounts. These are not okay to use either, because they are professionally-licensed photos. Stick to candid shots and you should be okay.
How you can tell: A graphic is like a stock photo in that it is generally used to convey a concept. They key difference is that a graphic is not photography -- rather, it is an image that was created by a graphic designer like the ones you see above.
When they’re good to use: Generally, they can be used in the same kinds of articles as stock photos, as long as the graphic fits the concept.
Are they safe? Usually, no. Follow the same rules as stock photos in terms of usage rights and safe sources.
How you can tell: Comics and illustrations are not as technically complex as graphics, and are usually hand or digitally drawn. The difference between a comic and an illustration is that a comic usually contains text or tells a sequential narrative, while an illustration, like a stock photo or a graphic, conveys a concept.
When they’re good to use: Usually for humor, or if the article specifically focuses on a particular artist’s work.
Are they safe? It really, really depends, so be careful. You can filter for fair use illustrations on Google or any of the stock photography sources listed above. Finding an illustration or comic on social media isn’t justification enough to use it, as some artists still want to be credited, or even paid, for their work (which, by the way, is their right).
Comics that are widely recognized (like Cyanide and Happiness above) are safer to use than comics that are new and unheard of. Still, if you’re “reporting” on the new comic/giving the artist credit and exposure, that’s a safer play, though not air-tight. This can be complicated, as you can see. If you have any questions about a specific image, ask someone at Presto to check out the source.
How you can tell: You probably know what this is, but we’ll give a very broad definition anyway. A meme is usually a photo or series of photos with text overlaid on top. It can be done for humor, political purposes, or simple inspiration. A GIF could also loosely be considered a meme, at least for our purposes.
When they’re good to use: Usually for humorous effect, though occasionally they may work for lifestyle or political articles, depending on the client’s expectations (for example, a snarky political article may benefit from memes, but a serious one would not).
Are they safe? Almost universally. Memes are derivative works, which are safe under fair use. This is why many meme creators will watermark their memes, because they can’t stop people from using them. Thus, they might as well get some exposure as the creator.
Memes are the only case when using a watermarked photo is acceptable, but we would prefer they be either cropped out or avoided.
How you can tell: They’re photos of celebrities, duh. As you can see from the examples above, photos of celebrities are usually red carpet shots (like Ryan Gosling and Katy Perry up there), paparazzi shots (like Jennifer Aniston and Justin Theroux up there) or magazine photoshoots (like Amy Adams up there). Photos of celebrities that come from their social media channels also count, but we covered those above. Stills from celebrity performances will be covered later.
When they’re good to use: Entertainment articles or articles about celebrities.
Are they safe? Depends where you get them from. The vast majority of the celebrity photos as defined above that you will find were taken by agencies like Getty, and are completely unsafe to use. Paparazzi photos are unsafe to use 100% of the time. Magazine photos are a little gray, because your article might be about the photoshoot or accompanying interview itself -- but in most cases, they’re unsafe.
That said, there are many high-quality celebrity photos that are safe to use, you just need to know where to look for them. Most will be found at Wikimedia Commons, Wikipedia, or Flickr (filtered by license). You can also filter a Google search, but the options will be limited. Of course, if you can’t find anything, you can always consider using photos from the next entry ...
Screencaps and stills
How you can tell: This kind of image is a still taken from a film, television show or music video. They are often high quality and come in a variety of sizes and aspect ratios because they are used so often in publishing. They depict a character played by an actor, or possibly a performance/interview of a celebrity (as is the case with Katy Perry up top).
When they’re good to use: When you can’t find photos for a celebrity/entertainment article, OR if you prefer to use this kind of image over a red carpet image for a celebrity/entertainment article. It’s a matter of personal taste.
Are they safe? Pretty much. Sometimes, these will come watermarked if they are being released as exclusives to preview something that is yet to come out. An example is below:
There’s some nuance here -- sometimes, if a studio releases promotional images on their website, they actually want publications to use them. However, sometimes a studio will hire an agency like Getty to take photos for an exclusive release. In those cases, the photos are unsafe, but should bear a watermark or attribution signaling copyright.
For the most part, screencaps and stills are safe to use (though be aware they are copyrighted). Promotional images, like the Entertainment Weekly example above, will require a bit more investigation on your part.
How you can tell: These photos depict real-life moments or figures in history. Usually, they’re grainy, sepia-toned or black and white, but recent historical photos can be almost indistinct from high-quality copyrighted agency photos.
When they’re good to use: Political, historical or throwback articles.
Are they safe? Depends who took them. Again, photos taken by government employees or officials are considered public domain, and this would apply to some historical photos, or more recent photos of presidential inaugurations or speeches. The best way to know would be to look for such photos on Wikimedia Commons, Wikipedia, Flickr, filtering a Google search, or looking on government websites/social media platforms and taking extra care to search for attribution credit.
Many historical photos are owned by agencies like Getty, and will bear their watermark or attribution. These photos are absolutely unsafe to use.
How you can tell: The problem with agency photos is that it can be hard to tell the difference between a photo taken by Getty and a fair use photo hosted on Wikimedia Commons. Both will feature celebrities on the red carpet or at events, for instance. But generally speaking, these are photos that feature public figures in real life and bear a watermark or attribution/copyright of a specific agency.
When they’re good to use: Never.
Are they safe?
Though not every agency photo will bear a watermark, they’re pretty easy to spot if you know what you’re looking for. While we can’t cover every single instance of a copyrighted agency photo in this guide, here are some examples of what you’ll most frequently see:
Obvious watermark. Don’t you dare!
See that watermark on the upper right? Cropping it out won’t make this fair use.
A common watermark in the lower-left. It could say Getty, AFP, Associated Press, or something else. Either way, you see this watermark, don’t use this photo or crop it out.
Watermarked and modified by HollywoodLife.com. Don’t bother.
Watermarked and modified by JustJared. Don’t bother.
For one, this is a paparazzi shot, which should be your first clue that this is unsafe to use. Second, there’s the obvious watermark.
A watermark may not be in the image itself, but if you click through to the source and see something like this, move along.
Lengthy attribution here. No go.
The Quick Guide To Which Pics You Can Use (If A Client Requires Fair Use Photos):
- Public domain
- Labelled for reuse/noncommercial reuse with or without modification
- Requires attribution and/or credit
- Non-watermarked production stills
- Non-watermarked screenshots
- Non-watermarked promotional materials (released by a studio)
- Government photos
- Non-watermarked social media posts
- Product photos released by a company for marketing purposes
- Photos from other publications
- ANY watermarked photo
- Red carpet photos
- Paparazzi photos
- “Leaked” set photos
- Photos from Getty Images
Tips for finding quality photos
You’ll build a better understanding of which photos you can use over time, and where you can get them. If you’re using stills, for instance, nothing is really preventing you from just using Google and typing in a search term like “Amy Adams Arrival” or “Ryan Gosling The Notebook.”
For any of the images discussed above that require a more careful touch, here are some good places to start looking for fair use photos:
- Wikimedia Commons
- Social Media (e.g., celebrity accounts)
- This blog post from Medium outlines dozens more safe photo libraries you can explore.
Google Searching Fair Use Photos
You can also find images on Google using their search tools. These search tools allow you to quickly and easily find quality photos at the size you need.