Hello
I have a new business that involves researching families and houses. I have an Instagram page where I give hints and tips to others on research and chat about some of the people I’m researching. If I find a photograph of said person online am I able to use this on Instagram under fair use?
As an example I’m researching a property that was lived in by a famous General. There is a great photo of him on national portrait gallery. Can I use this to discuss his career and life or would I need to pay a fee? I am not publishing the photos in a book or making any money from them. This picture dates from around the 1980’s.
Thank you
Using photographs on social media
Re: Using photographs on social media
Hi Jonana,
Generally speaking, you need to assume that permission from the copyright owner is required before publishing any photograph you find on the internet. It doesn't matter whether you are publishing for commerecial or non-commercial purposes. However, there are some fair dealing exceptions which would allow you to make use of photographs and other copyright-protected works without permission, although you do need to cite the source in each case. You can find more details about the exceptions which relate to research here. From what you have told us, it sounds as if this would amount to fair dealing for the purpose of research and private study, and by using an NPG photograph you are on safer ground anyway because their terms and conditions do allow the use of their lower resolution images for free.
If you want to use an image created by, for instance, a freelance photographer and which is offered for a licence via a picture agency, much more care is needed as he or she will earn their living from the exploitation of their work and the picture agency will tend to have a more pro-active policy with regard to what they consider to be fair use. This is particularly problematic where photographs are concerned because in most cases you have to use the whole image, and the fair dealing doctrine usually falls short of allowing the whole of a work to be copied where this would confict with the author's own ability to financially benefit from his/her work. As you are doing this research as a business, consider how you would feel if someone took the whole of a piece of your research on a particular house and re-published it without your permission.
Generally speaking, you need to assume that permission from the copyright owner is required before publishing any photograph you find on the internet. It doesn't matter whether you are publishing for commerecial or non-commercial purposes. However, there are some fair dealing exceptions which would allow you to make use of photographs and other copyright-protected works without permission, although you do need to cite the source in each case. You can find more details about the exceptions which relate to research here. From what you have told us, it sounds as if this would amount to fair dealing for the purpose of research and private study, and by using an NPG photograph you are on safer ground anyway because their terms and conditions do allow the use of their lower resolution images for free.
If you want to use an image created by, for instance, a freelance photographer and which is offered for a licence via a picture agency, much more care is needed as he or she will earn their living from the exploitation of their work and the picture agency will tend to have a more pro-active policy with regard to what they consider to be fair use. This is particularly problematic where photographs are concerned because in most cases you have to use the whole image, and the fair dealing doctrine usually falls short of allowing the whole of a work to be copied where this would confict with the author's own ability to financially benefit from his/her work. As you are doing this research as a business, consider how you would feel if someone took the whole of a piece of your research on a particular house and re-published it without your permission.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
Re: Using photographs on social media
Thank you for taking the time to reply. I did read the guidelines on the NPG website but was still confused 
and thought it was better to double check. It’s a bit of a minefield!
and thought it was better to double check. It’s a bit of a minefield!Re: Using photographs on social media
Hello,
I've recently started a business focused on researching families and houses, and I share tips and insights on my Instagram page. If I come across a photograph of an individual during my research, such as a famous General from the 1980s found on the National Portrait Gallery, am I allowed to use it on Instagram under fair use? I plan to discuss his career and life without any monetary gain, and the photos won't be published in a book or used for profit. instaup
Thank you.
I've recently started a business focused on researching families and houses, and I share tips and insights on my Instagram page. If I come across a photograph of an individual during my research, such as a famous General from the 1980s found on the National Portrait Gallery, am I allowed to use it on Instagram under fair use? I plan to discuss his career and life without any monetary gain, and the photos won't be published in a book or used for profit. instaup
Thank you.
Re: Using photographs on social media
Hi Lucky and welcome to the forums,
As I am sure you've noticed the NPG claim copyright on all thier images, even very old photographs and paintings which are clearly out of copyright. However an image from the 1980s is almost cetainly going to be legitimately covered by copyright so in cases like that the NPG claim is justified.
The next step is to see if the fair dealing (not fair use - that's an Amertican legal doctrine) exceptions will allow you to use the image in the way you describe. The relevant part of the Copyright Designs and Patents Act is Section 29, which says:
There is another solution which avoids the uncertainties of fair dealing. Instead of embedding the image within your Instagram post so that a copy of it is actually stored locally on Instagram, you can just link to image on the source website, such as the NPG. This does not infringe provided that the image is made freely avalable to the public on the source website, and isn't behind a paywall etc. This method does not even require you to acknowledge the source of the image, unlike the fair dealing method. The legal certainty for this method is to be found in several important court cases, principally, Svensson, Bestwater and GS Media.
As I am sure you've noticed the NPG claim copyright on all thier images, even very old photographs and paintings which are clearly out of copyright. However an image from the 1980s is almost cetainly going to be legitimately covered by copyright so in cases like that the NPG claim is justified.
The next step is to see if the fair dealing (not fair use - that's an Amertican legal doctrine) exceptions will allow you to use the image in the way you describe. The relevant part of the Copyright Designs and Patents Act is Section 29, which says:
On the face of it this would appear to cover what you want to do, provided that you make the appropriate acknowledgement of the copyright owner. However, fair dealing is not a blanket exception, and you would need to be very sure that use of a particular image was essential for the research purpose involved. Photographs pose a particular problem because, when they are used for fair dealing purposes, it almost always means that the whole of the image is used and it then becomes a question of whether this is proportionate and indeed 'fair'. Contrast your example with a blog which was discussing the work of a famous artist. There the justification for showing a small portion of a painting to illustrate the artist's skill in portraying light or fabric texture etc would be much more obvious, and so more clearly fair dealing. The counter argument in your case is whether it is necessary to show an image of General So and So in order to provide a biography of him, where copying the image may conflict with the copyright owner's genuine economic rights arising from copyright.29 Research and private study.
(1) Fair dealing with a work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.
No acknowledgement is required in connection with fair dealing for the purposes mentioned in subsection (1) where this would be impossible for reasons of practicality or otherwise.
(1C) Fair dealing with a work for the purposes of private study does not infringe any copyright in the work.
(2) [repealed]
(3) Copying by a person other than the researcher or student himself is not fair dealing if—
(a) in the case of a librarian, or a person acting on behalf of a librarian, that person does anything which is not permitted under section 42A (copying by librarians: single copies of published works), or
(b) in any other case, the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose.
(4) It is not fair dealing—
(a) to convert a computer program expressed in a low level language into a version expressed in a higher level language, or
(b) incidentally in the course of so converting the program, to copy it,
(these acts being permitted if done in accordance with section 50B (decompilation)).
(4A) It is not fair dealing to observe, study or test the functioning of a computer program in order to determine the ideas and principles which underlie any element of the program (these acts being permitted if done in accordance with section 50BA (observing, studying and testing)).
(4B)To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.
There is another solution which avoids the uncertainties of fair dealing. Instead of embedding the image within your Instagram post so that a copy of it is actually stored locally on Instagram, you can just link to image on the source website, such as the NPG. This does not infringe provided that the image is made freely avalable to the public on the source website, and isn't behind a paywall etc. This method does not even require you to acknowledge the source of the image, unlike the fair dealing method. The legal certainty for this method is to be found in several important court cases, principally, Svensson, Bestwater and GS Media.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007