What’s the purpose and character of the use? If you want to illustrate a story with a photo, that’s unlikely to slide. If you’re commenting on or analyzing that specific photo, you’ve got a better case.
What the nature of the original work? “The more creative the work, the less fair-use rights there are going to be,” Lieberman said.
How much did you use? If you’re using a photo, you’re probably going to use the whole thing. That counts against you.
Are you affecting its value? Is there a market for the work? In the case of photography and music, yes. “There is clearly a market for clearing these things and paying for their use, and if you used it without permission, you’re going to get approached,” said Lieberman. “And you better have a pretty good reason for why you used it without paying for it.”
Hart and Lieberman went into more gory detail, and it’s all available, recorded, on ONA’s website. It’s worth listening to. And here’s a last bit of practical advice from the class: Give people a way, on your website, to contact you, if they think you’ve screwed up.
Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.