Using an image found online

Question

I was about to do something but got curious about the legal aspects. Say you search for an image of something, for example a famous work of architecture, because you recently visited it and want to show it to a friend in an email and an internet search returns many results. Let's say the one you like is a reduced, low resolution version of an image that is offered for sale as a larger print. Are you free to include the small digital file in an email?

I did some investigating and find it all confusing but the following from The Complete Guide to Using Images Legally Online would seem to indicate my intended use would be allowed. Agree?

To elaborate further, four main criteria determine whether the picture is ‘fair’ or not.

1. The purpose and character of the use: This determines whether the picture is used for a non-profit or commercial activity.
2. The nature of the work to be used: For example, the laws give more freedom to factual pieces such as biographies compared to fictional work.
3. The amount of the image used: The laws usually permit using a small piece of the picture or a low-resolution version.
4. The market effect: Using images that do not decrease the market value of the images

Answer 1

Fair Use Factors

Your question correctly quotes the four fair use factors from 17 USC 107. However, the explanations quoted from your source are oversimplified and a bit misleading.

Factor 1, for example, covers more than just whether the use is commercial or not. This is also where a court assesses whether a use is transformative. A transformative use is much more likely to be considered a fair use. Many people misunderstand what a transformative use is in copyright law. A transformative use is not one that has been physically altered, like a track being remixed or an image morphed. Rather, a use is transformative if it is for a quite different purpose than the original. For example, suppose an image of a famous building was used as part of a marketing campaign to sell airline tickets to the city where it is located. Then someone reuses the image as part of a book on architecture. That would be transformative.

Factor 2 also covers whether the source work is published or not.

One should also note that the fair use factors apply to reuse of test, music, and other works as well as images.

Analysis

Let us look at the example case in the question. The image is of a famous site, and similar images are widely available. The image is at a reduced resolution, not suitable for physical printing. The intended use is for personal communication to a single person, not for sale and not for wide distribution. The use is not significantly transformative.

Factor 1 favors fair use somewhat, because the intended use is non-commercial. The reduced resolution helps here, somewhat. Factor 2 leans against fair use, because the image is at least somewhat creative. Factor 3 leans against fair use, because the entire image is being used, but neither 2 nor 3 is often decisive. Factor 4 is likely to be the key here, and as described there seems to be no real market harm. So this use might well be held to be a fair use if the matter ever comers up in a court, which is not likely.