What is the latest copyright law on embedding photos?

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Every week, Student Press Law Center attorneys answer a frequently asked question about student media law in “Legal Question of the Week.”

Q: What is the latest copyright law on embedding photos?

A: The law is not settled, but there have been some recent developments that suggest you probably want to exercise more caution. Following some early court decisions, it seemed that embedding a photo — which is where you include a photo’s code from an outside source in your posted story, but not the photo itself (even though to a reader there’s little difference) — was probably safe. But now the pendulum appears to be swinging the other way as a few more recent cases have said that embedding cannot be used as an end-around the long recognized general obligation to obtain permission from a copyright owner before using their work. Until the legal dust settles, we believe the safest practice is to obtain permission before embedding an image — unless, of course, you are using material that doesn’t normally require it, such as many Creative Commons images or in a situation where you can make a valid fair use claim.   

Legal questions should be directed toward SPLC’s legal hotline. Legal Questions of the Week are selected based on trends in the legal hotline. The legal hotline is confidential and no identifying information will be used in the Legal Question of the Week segment.