Fair use is real law, but it rarely saves a business that copies someone else’s photo to sell a product. Here is what the four factors actually say and what to do instead.
This guide is general information for creators and businesses in the U.S., not legal advice. Copyright, licensing and drone rules depend on the facts and change over time; check the Copyright Office, the FAA or a lawyer for your situation.
Quick notes
- Fair use comes from Section 107 of the 1976 Copyright Act and lists example purposes such as criticism, comment, news reporting, teaching, scholarship and research.
- Courts weigh four factors together, and no single factor decides the outcome.
- Commercial promotional use counts against you, and copying an entire photo counts against you twice.
- There are no percentage rules, and crediting the photographer does not appear anywhere in the four factors.
- Licensing an image, asking permission, or shooting your own photo is faster and safer than betting on fair use.
Fair use gets invoked often when someone wants to justify a photo found online. It is real law, but narrower and less predictable than most business owners assume, and on a commercial website it rarely rescues a business that copied someone else’s image to sell a product. This explainer covers what the doctrine says, the four factors courts weigh, and safer routes when you need an image.
What Fair Use Is and Where It Comes From
Judges developed fair use during the 1800s as a way to allow limited copying that serves copyright’s purpose better than blocking it would, and Congress wrote it into statute in Section 107 of the Copyright Act of 1976. It permits unlicensed use of protected work in some circumstances, without the owner’s permission.
Section 107 lists example purposes, among them criticism, commentary on a work, news reporting, teaching, scholarship and research. The list is illustrative, not a guarantee: falling into one of those categories starts the analysis rather than ending it. The U.S. Copyright Office maintains a Fair Use Index of court decisions so non-lawyers can see how judges have ruled in real cases, and it notes that both the kinds of disputes and the way courts apply the doctrine have shifted over the years.
The Four Factors Judges Weigh
Every fair use argument comes down to the same four factors:
- Why and how the work is being used, including whether that use is commercial or nonprofit and educational.
- The nature of the copyrighted work, such as whether it is factual or creative, published or unpublished.
- How much of the work was taken, and whether that portion was substantial relative to the work as a whole.
- What the use does to the market for the work, including its value and the owner’s chance to license it.
Courts weigh the factors together. No single one decides the case, and one factor favoring fair use can be outweighed by the other three. There are no bright-line rules in the statute. The Copyright Office is explicit that no rule permits a specific number of words, musical notes or a percentage of a work, and that whether a use qualifies depends on all the circumstances. The only way to settle the question for certain is in federal court, so outcomes stay hard to predict even for lawyers.
Here is a short worked example, offered purely as an illustration. A bakery copies a professional photographer’s photo of a latte and puts it on its homepage to promote its espresso drinks. The first factor points against the bakery because the use is commercial and promotional, not commentary. The second points against it too, since photographs are creative works that get strong protection. The third points against it because the entire image was copied, which is typical with photos. The fourth points against it because photographers license exactly this kind of commercial web use, so the copying substitutes for a paid license. Four factors, four strikes, and a weak fair use claim.
Why Commercial Use Counts Against You
The first factor asks directly whether the use is commercial. Nonprofit, educational, scholarly and research uses tend to favor fair use; commercial ones often do not. Nearly any image on your business website is commercial by definition, because the page exists to sell something.
The fourth factor compounds the problem. If a market exists for licensing the exact use or type of use you are making, that weighs against fair use. Photos are licensed commercially all the time, so a photographer can point to a lost license fee every time a business grabs an image for free. Courts have found fair use even in commercial settings and denied it for some educational ones, so nothing is automatic. But the mix of factors most promotional photo copying presents runs against the copying business.
Common Fair Use Myths in Business Content
Because fair use has no bright lines, persistent myths have grown up around it. These show up most often in business content:
- Credit makes it legal. Attribution appears nowhere in the four factors. Crediting the photographer is honest, but it is not permission and does not tip any factor.
- Using 10 percent or less is always fair. No percentage rule exists. Taking less generally favors fair use, but even a small taking fails if it captures the heart of the work.
- Any change makes it transformative. Courts look for new expression, meaning or message. A filter or a crop does not supply that on its own.
- Noncommercial or educational use is automatically fair. All four factors still get weighed together, and courts have denied fair use for some educational uses.
- If it is online, it is free to use. Most images on the web are protected by copyright, and the absence of a watermark says nothing about a photo’s status.
When Commentary and Criticism Really Do Qualify
Fair use earns its keep where the copied work is itself the subject of discussion. If you review a product and show the exact image you are reviewing, quote a short passage you are critiquing, or report the news using material necessary to the story, those are the uses Section 107 had in mind. Courts have upheld fair use in cases like these.
The analysis stays fact-specific, though. In one case, a court described a Harry Potter encyclopedia as only slightly transformative, because it made the books’ terms and lexicons available in one volume, and held that this was not enough to justify extensive verbatim copying of the text. A useful self-check: if you could make your point just as well without the copyrighted image, your claim is weaker. Fair use protects commentary, not decoration.
Fair Use and Transforming a Photo
A 1994 Supreme Court decision made the transformative question central to the first factor: has the material been used to create something new with a different purpose or message, or merely copied verbatim? Parody can qualify because it holds the original up to ridicule, and scholarship qualifies when the work is the subject of review or commentary.
Changing a photo is not the same thing. Only the copyright owner can prepare, or authorize, a new version of the work, so you cannot claim copyright in someone else’s image no matter how much you alter it without the owner’s consent. Repurposing an image so it serves your sales pitch is also not the same as commenting on it. Recoloring a product photo and using it to sell your own version still takes the whole work for a commercial purpose, which fails the first, third and fourth factors at once.
Safer Routes When You Need an Image Fast
Fair use is a defense you argue in court after being accused, not a permission slip you hold in advance. Before you paste an image into a page, pick one of these:
- License the image. Royalty-free and rights-managed photos cost far less than an infringement claim. Our overview of royalty-free, rights-managed, editorial and Creative Commons licenses explains how each type works.
- Ask the copyright owner directly. If you are unsure who owns a work, the Copyright Office lets you search its registration records, most of which are online for works from 1978 onward.
- Use public domain or properly licensed Creative Commons images, and follow the specific license terms.
- Shoot it yourself. A window, a sheet of paper and a phone will beat a stolen photo on most product pages, and the setup costs almost nothing.
One caution: photos you commission can raise ownership questions of their own, so understand who holds the rights before money changes hands.
If someone copies your photos instead, the tools run the other way: you can locate the copies and send a DMCA takedown notice to get them removed, and registering your images strengthens your position if it ever comes to that. For more on the licensing side, start with Image Licenses Explained, and for your own shots, see Registering Copyright for Your Photos.
FAQs
Can I use a photo if I credit the photographer?
Attribution is not one of the four fair use factors, so it does not make an unlicensed use legal. You still need permission, a license, or a genuine fair use basis.
Is there a percentage of a photo I can use for free?
No. There is no fixed percentage or portion of a work that is automatically allowed. The amount taken is one of four factors courts weigh, and even a small portion can fail if it captures the heart of the work.
Does editing someone else’s photo make it mine?
No. Only the copyright owner can prepare or authorize a new version of a work, so a heavily edited copy still belongs to the original owner unless that owner agrees.
What should I do if I already used a photo without permission?
Take it down, and if your own photo was taken, you can find copies and send a takedown notice. For decisions about your own exposure, talk to an attorney.