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If one wants to include an image in a post here you have two options. You can use the inline format:

![Text](https://stackoverflow.com/image.jpg)

Or you can click the "Image" icon in the toolbar, and paste the link there. This latter method will result in the image being uploaded to imgur and the link to that site included in the post, while the former method will result in a hotlink to the original site.

From these two questions it seems like hotlinking is generally safe from a copyright perspective. I would assume that uploading an image to a third party site would very much not be safe, as it is clearly causing a copy to be made.

The example that prompted this question was this post, where the results of two papers are discussed with reference to the figures from the paper. I would have thought that with hotlinking it is used exactly in line with the aims of the site, to stimulate discussion of the issues raised in the paper with reference to the results. I would not expect anything to happen in this case, but academic publishers have been quite defensive about their intellectual property and I would expect them to have a case if they complained about the reupload of the images to imgur.

What are the legal considerations here? Should we all be avoiding the "Image" icon in the toolbar unless we have the right to make copies of any included images? Is there a copyright exception that allows reupload of images available on the web? Is there something else that make this OK? Or is even hotlinking copyright breach and so no images should be included unless we have the right to make copies?

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Ahem, questions about "should" are requests for legal advice, so I assume you did not ask what should be done, instead you asked what the law is. The main legal consideration regards "fair use". This is a canonical instance of fair use. This (the first graphic) use does not undercut the copyright holder's financial benefit (the article is not even behind a paywall), and the purpose of including the graphic is "for comment", which is why the fair use exception exists. The authors, who retain copyright, are not exactly clear on the license under which the article is released, but one of those links points to CC BY-NC-ND 4.0, which says that this is not a licensed use. So the cited post would have to rely on a fair use defense, in case the authors decide to sue.

It is also true that the graphic could have equivalently been presented via a hotlink, but that method is much less effective. That does not change the legal situation.

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  • It is not clear from this answer what the difference is. You say it does not change the legal situation, but this could be interpreted as "in this case they are both fine, because fair use" or "hotlinking and uploading are legally identical". The linked questions seem to say that creating a hotlink is not a right that is limited by copyright, but I think uploading to an image site is.
    – Dave
    Jul 25, 2021 at 17:39
  • The difference is that hotlinking does not copy anything protected, it refers to something something protected. If you actually copy, as was done in that SE post, that copies and puts the potential infringer in the position of having to defend the copying based on fair use.
    – user6726
    Jul 25, 2021 at 17:58
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    I may be missing something obvious, but that sounds like it quite explicitly changes the legal situation.
    – Dave
    Jul 25, 2021 at 18:01
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A link is not a copy and there is plenty of case law from the early days of the internet that says so.

Copying an image (or anything else) to a repository is making a copy and is prima facie copyright violation. Whether it is actually copyright violation depends on if the copier can avail themselves of a defence: either that they had permission or that it was fair use/fair dealing.

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