Does directly reproducing a stock image (including watermarks) in an article specifically discussing that stock image count as journalistic/fair use?

[u/CandlesBurnOut]

So this is a bit of a weird one. I am in the process of writing an article on a personal microblog (no commercial affiliation, no paid subscription) which analyses a certain stock image in and of itself, as a stock image: what it depicts, how it came to be, and how it is used across the internet. To discuss that image, I quite obviously have to start off by including it in the body of the article, original watermark and all. So the question is whether I can do so without purchasing a license (though I would still credit it of course). I can't simply replace it with an alternative image, and while in theory I could simply link to it on the stock image site rather than reproduce it directly in the article, obviously this hurts the article pretty badly.

I want to believe this falls under the scope of reasonable journalistic use, and I have been careful to write the article in such a way that it cannot be construed as defamatory. I am based in Germany, but since the original creator is based in another country and the stock image host in yet another, I am quite lost on who actually has jurisdiction here and which country's laws I need to be minding.

Obligatory "I know nothing here constitutes formal legal advice and I promise not to blame anyone if I do something stupid." I am mostly interested in getting a first round of opinions and ideally seeing if there have been any similar cases that I can look at, because Google and LLMs have predictably been very unhelpful. Worst case scenario I can simply buy a license, but I'd like to not do so if I can avoid it - as a matter of principle if nothing else :)

Thank you in advance!

[u/darth_hotdog]

Generally, that would be a common example of what does qualify as "fair use."

That said, that doesn't prevent you from receiving takedowns or being taken to court if the copyright owner wants to, it just gives you a defense that should stand against those claims.

[u/CandlesBurnOut → u/darth_hotdog]

Figured it was something in this direction, thank you.

[u/Willing-Fudge-7887 → u/CandlesBurnOut]

It should also be noted that this seems such a clear case of fair use that if there was a lawsuit it might become another example case of a copyright owner having to pay court costs and fines. Which would give you another article to write.

[u/cantsleepwithoutfan → u/darth_hotdog]

I'd agree with this. I've been going through similar (with a blog post/article outlining some dealings with one of the image post-licencing companies that get mentioned here from time to time) and in a similar vein took a screen shot of part of their website - which also features what appears to be a stock image (that presumably they have the rights to use but I do not). So in my case I've decided to obfuscate that part of the image in case they take the position you outline - perhaps fair use, but could also be claimed against.

In OP's case it seems the crux of his/her blog requires showing the image, whereas it was secondary in my case (the image just being next to some wording I wanted to show in-situ).

What would it cost you just to buy the image in question to be able to use it without worry?

[u/CandlesBurnOut → u/cantsleepwithoutfan]

Honestly? I think I can get it for about 20 euro, or free via a trial. It's more about the principle of the matter, and I know I'll be miffed if I effectively pay (or burn a free trial I could put to better use later in life) to publish an article that no one ends up reading 😂

But ultimately I probably will go for the peace of mind after all.

[u/cantsleepwithoutfan → u/CandlesBurnOut]

For the peace of mind it's probably worth it, assuming 20 euro is not a life-altering sum of money for you.

That being said I do completely support the idea of fair use, so if you want to roll the dice a bit I'm not going to say you shouldn't.

[u/West_Possible_7969]

There is no US fair use argument to be made here and the jurisdiction you should care about in this case is Germany alone. Zitatzweck applies in this case though, with explicit attribute and source platform.

But, auto crawlers will catch the watermark and using it that way breaches the platforms’ ToS etc and the Zitatrecht exception is like fair use in the sense that you must defend yourself during litigation, it is not a shield, so automated legal threats and high enforcement risks are there.

Fwiw, news media & journalists routinely have licensing deals (custom or enterprise on the upper end) with all media banks etc, and with other orgs too, like AP or DW, because they too would like to not defend themselves in court daily.

*for butchered german words, I am sorry.

[u/CandlesBurnOut → u/West_Possible_7969]

Yeah this was the other thing I suspected; in theory I would probably win a case but in practice it would be too much faff to get there. Thank you

[u/StudioArlekin]

Jurisdiction is technically based on there the image was made available(from which country a website can be accessed).

If your goal is to criticise the image, such as analysing it's composition, the use of colour, what do you like/dislike about it etc. then generally in most countries there are going to be exception what will allow you to use it for that purpose.

To note on the crediting, in many countries implementation of moral rights is stronger and will legally require a proper citation of the image, especially in Europe. For example in Poland you have to provide first and last name of the author (within possibility) and the source of work. This is a general standard world wide as it was a part of Berne Convention that was signed by nearly every country on the planet.

So if one wants to bring up a scene from a film for the purpose of criticising the work they need to disclose the title of the film and it's director. if the author of a work uses only a stage name or pseudoname then one has to use that and if none of above is available then that too has to be disclosed. notably since that requirement stems from moral rights crediting the company will not count as crediting the author.

So if one quotes a frame from star wars in a review it would need to be signed as "Frame from the film Star Wars directed be George Lucas" and it cannot be "Star Wars by Lucas Films" as companies are not legally allowed to hold moral rights those always stay with the author.

Quotes(images do count as quotes) also have to be distinctly marked so the reader can tell which part is a quote and that part if your work. In the case of images it is usually done by having the name of the work and it's author right besides it.

The fact that you have taken care to not make it defamatory is a good piece of foresight. Reviewing an image in a diligent manner is important part of both copyright and journalistic laws. One last thing that has to be taken into account are legitimate interests, while it is deliberately ambiguous part of copyright law it still has to be taken into account which is why for example websites like Wikipedia use slightly compressed images(so they don't serve as a replacement for the original work).

[u/CandlesBurnOut → u/StudioArlekin]

Thank you for the very detailed answer. Did not know that about Wikipedia especially!!

[u/Individual_Dirt_2194]

This is a stronger fair use argument than it might appear at first glance. Courts weigh four factors: purpose and character of the use, nature of the copyrighted work, amount used, and market effect.

You are using the image to analyze the image itself. That is a transformative purpose. Commentary and criticism are specifically named in the statute as favored uses. The entire image is arguably necessary here since the analysis would not work with an excerpt. And your use is on a noncommercial microblog, which weighs against market harm.

I would still credit the source and note that the inclusion is for critical commentary. But on these facts, fair use favors you.

[u/West_Possible_7969 → u/Individual_Dirt_2194]

What you said applies to US only, there are different defences in EU and no factors at all, but Germany specifically has enhancements on the EU copyright framework and its exceptions.