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A recent article about street photography suggested pointing the camera into the sun and taking silhouettes as "a great way to create a dramatic effect while maintaining the anonymity of your subject".

I downloaded the picture, adjusted it in photoshop to show that the anonymity was not kept and posted that to the comments.

The photographer complained, "Please don't modify my photos without permission".

My impression is I don't need her permission as it's fair use. I was using it to comment and educate. I'm not trying to sell it. I'm not depriving her of any income (no one is going to want the modded version. The modded version is not a good picture because with the adjustments it's no longer interesting. It just shows that anonymity was not kept. Both pictures are also relatively low-res (web pictures).

Is it "fair use" or should I take it down?

note: I could have also just screen captured it (2 buttons on my iPhone) and then edited it in the built in photo editor. The point being it's not difficult or rare to edit photos in 2015.

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  • \$\begingroup\$ As for the ‘anonymity’, to be honest even the original does not ‘protect’ anything. \$\endgroup\$
    – Dmitry Alexandrov
    Jan 9, 2015 at 5:32
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    \$\begingroup\$ What is your location? What is the location of the photographer? Legal matters differ between locales, and "fair use" is a legal principle. \$\endgroup\$
    – user
    Jan 9, 2015 at 9:25
  • \$\begingroup\$ Is there some reason that you couldn't simply explain your point without actually demonstrating it? \$\endgroup\$
    – Caleb
    Jan 9, 2015 at 10:41
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    \$\begingroup\$ I believe the point is made far better by demonstration and made even more powerful by using the very picture claiming to "...maintaining the anonymity of your subject". Even someone who didn't read the comment but saw the picture would likely get the point. If there was only description many people wouldn't bother to read. If it was some other picture, even if it was A|B, at a glance they might just think it some picture about lighting. But using the original, the one claiming to protect anonymity, makes the point clear immediately, at a glance IMO. \$\endgroup\$
    – gman
    Jan 9, 2015 at 12:09
  • \$\begingroup\$ Did she get the permission from her "anonymous" subject prior to publishing the article? Both works (hers and yours) were done to show some point to others and I would call both fair use. Complaining about how your comment deprives her article of her point by using such a legal statement is somewhat childish. \$\endgroup\$
    – NuTTyX
    Jan 11, 2015 at 1:15

3 Answers 3

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This seems likely to qualify as fair use, by several of the four factors used as tests.

  1. "The purpose and character of your use" — educational and as part of commentary on educational article
  2. "the nature of the copyrighted work" — the work itself was used as an educational illustration and you're extending that
  3. "the amount and substantiality of the portion taken" — so, possibly you'd be better if you just cropped to the portion needed to make your point
  4. "the effect of the use upon the potential market" — again, quite strongly in your favor

However, the way this works is: you find out who is right in court. Or you might if it came to that. But in this case, where the response isn't a legal threat but a relatively polite request, I think I'd be inclined to comply. If you want to demonstrate the issue, encourage other people to try it for themselves, or set up your own demonstration image.

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Is modifying a photo to educate generally fair use?

In general, no.

For example, if I made copies of your photos and used them as part of an educational course in which I charge students, even if I modified the photos to add arrows that identify relevant elements, you might argue that my modified versions of your photos were derivative works not fair-use copies.

But it depends on jurisdiction.

You give your location as "Earth" but ask a question whose answer will depend very much on whether you live in Beijing, Damascus or Oslo.

For advice about what is legal, you should of course, not rely on random strangers on the Internet, better to ask an appropriately qualified lawyer in the relevant jurisdiction.

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  • \$\begingroup\$ In general, Yes: If the use is in an educational or artistic critique. The use would be strengthened by only using the necessary relevant portion of the image needed to demonstrate the point, just as newspapers and magazines may reprint portions of literary works that they choose to review without permission from the publisher of those works. Such a literary review could also include a paraphrase of the original work in which the reviewer states something to the effect of, "If the author is going to say, "<quote from the work>", she might as well have said, "<reviewer's paraphrase>"." \$\endgroup\$
    – Michael C
    Jan 10, 2015 at 20:32
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Matt has a good sense of the legal argument, but I think there's an ethical argument as well: barring an explicit legal contract spelling out the rights you have permission to, you might have the legal ability to use an image, but the photographer's wishes should have strong influence on whether you should use it.

Maybe you can use it legally, but if the photographer doesn't approve of the usage, should you against their will?

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    \$\begingroup\$ I think there are arguments that I should in this case. Using a picture is far easier to grasp than a paragraph of text explaining how to do it or what the issue is. Using that specific picture in a comment on the article the picture is from is even more likely it stand out and make the point at a glance. In other words it will stick out. The point being that if you're going to try to protect anonymity you have to take more steps than just putting faces in shadows. So, in this case I think it's actually worse to respect the photographers wishes. \$\endgroup\$
    – gman
    Jan 9, 2015 at 6:16
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    \$\begingroup\$ or consider taking your own picture to explain the point rather than use one in a way the photographer doesn't want used. it's unclear what it has to be THAT picture when you can create our own to explain the point that don't have the ethical complications \$\endgroup\$
    – chuqui
    Jan 9, 2015 at 6:16
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    \$\begingroup\$ I don't think there are any ethical complications. I shouldn't have to spend several hours to explain something that needed explaining when I can do it in 30 seconds just because some photographer doesn't understand fair rights usage. I'd say their request is the less ethical request, especially since they just wrote an article implying their pictures were more ethical since they protected anonymity. \$\endgroup\$
    – gman
    Jan 9, 2015 at 6:22
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    \$\begingroup\$ Judging by your comments here, you seem to have made up your mind. Are you really asking a question, or just looking for support for the position you've already taken? \$\endgroup\$
    – Caleb
    Jan 9, 2015 at 18:51
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    \$\begingroup\$ IMO, this argument sounds far more like an issue of etiquette than one of ethics. \$\endgroup\$
    – user36908
    Jan 9, 2015 at 19:33

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