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Say for example you want to convey a detail to someone of a common object, and showing them a picture would be a lot simpler than describing it in words. Would it be illegal to download an image from a (commercial) website and send it to them as an attachment by email or in a group chat on a messaging platform?

As a specific example, a construction worker is sent to the store to pickup supplies. His boss messages him a photo of the type of screw they need. If this photo was downloaded from the store's website (and not just linked) would this be illegal?

Many TOS of websites contain terms such as "you aren't allowed to reproduce or copy any part of this website". This sounds like it expressly prohibits downloading and sending photos. However my understanding is copyright does not apply to subjects that show no originality, for example simple phrases like "have a nice day" are not protected by copyright. Would it depend on the photo, for example a photo of a common screw vs a new type of screw?

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Generally, a photo of an ordinary 3D object, such as a nail or a screw, has enough originality to get copyright protection under US law, even if it is a very common type of object with nothign new or unusual about it.

However, using such an image to help describe or identify the object is quite likely to be fair use. In particular, it does no economic harm to the copyright owner, and is not likely to replace the original. The original is more of a fctual than a creative work.

In any case the chance of a website owner or other copyright holder learning of such a use and bringing an infringement action over it seems very small indeed. But if the use were held not to be fair use, then it would be infringement, at least technically, unless permission had been granted. (Fair use is not infringement under US law.)

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  • Would fair use protect against breach of the TOS e.g. "users can't reproduce images found on this site"?
    – fivemoose
    Jul 11, 2022 at 19:22
  • "In any case the chance of a website owner or other copyright holder learning of such a use" Agreed, however would it make a difference if it was posted to social media?
    – fivemoose
    Jul 11, 2022 at 19:22
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    @fivemoose Fair use protects against a claim of copyright infringement under US law. I believe that "fair dealing" has a similar function under Canadian law. It does not automatically protect against a claim for breach of contact. A plaintiff would have to show that the TOS was an enforceable contract (not all are) and that there was sufficient damage for a court to be concerned over the matter. Many courts are not receptive to suits over technical breaches with no economic or practical effect. A post to social media is more likely to be noted, but in most cases still not very likely
    – David Siegel
    Jul 11, 2022 at 19:27
  • Why do you say the copy of the photo is "is not likely to replace the original"? The original - i.e. the same photo but used with permission from the copyright holder - could in principle be used for exactly the same purpose.
    – bdsl
    Jul 12, 2022 at 21:17
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    @bdsl "The original" is the term used in case law when discussing fair use issues. Perhaps "the source" would be clearer. It makes more sense when the use is of a modified version or an excerpt of the source. Here it would mean all copies made and distributed with the permission of the copyright owner.
    – David Siegel
    Jul 12, 2022 at 21:36

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