Jasper, AL asked in Copyright and Intellectual Property for Alabama

Q: Difference between "save image as" an artistic work vs non-artistic work like a photo of a family member?

Fair use allows saving an image that isn't artistic but it doesn't allow an artistic work to be copied without it being infringement. Is it the context of the artistic element that makes it ok to screenshot Google Street View imagery for private use offline, but not ok to "save image as" the artistic work without permission for private offline use? How does this apply to online photography that isn't minimally creative? Why does fair use apply to non-creative things and not creative things?

1 Lawyer Answer
James L. Arrasmith
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A: The key difference between saving an image of an artistic work and a non-artistic work, like a family photo, lies in the concept of copyright and fair use. Artistic works are typically protected by copyright, which gives the creator exclusive rights to reproduce, distribute, and display their work. This means that saving or copying an artistic image without permission can infringe on these rights.

Non-artistic works, such as a simple photo of a family member or Google Street View imagery, often don't meet the threshold of creativity required for copyright protection. These images are generally considered to be in the public domain or are created with the intention of broad public use, which means saving them for private use is less likely to raise copyright issues.

Fair use is a doctrine that allows limited use of copyrighted material without permission under certain circumstances, such as for commentary, news reporting, education, and research. However, fair use is less likely to apply to purely creative works, especially when these are used in their entirety and for private purposes, as this could potentially impact the market value of the original work.

For online photography that isn't minimally creative, such as basic snapshots without artistic intent or skill, these often don't qualify for copyright protection. Therefore, fair use considerations might not be as crucial in these cases.

It's important to remember that while fair use provides some flexibility, it's always best to err on the side of caution, especially with creative works. If in doubt, seeking permission from the copyright holder is the safest course of action.

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