I have never heard of any sort of action being taken where ‘real damages’ weren’t an issue. Either money as has been mentioned several times above or if the image is being used in some way that is detrimental to the copyright holder. For instance your twitter feed is highly deragatory of some group, blacks, whites, jews, women, whatever.
Otherwise, I suspect it’s not worth much more effort than a canned cease and desist.
Not true, actually. 
Just get a photobucket account.
IANAL but according to section 107 of the US Copyright law there are four main tests that are considered when determining fair use:
The use of an image from the internet in a non-commercial endeavor like a message board avatar breezes past tests 1 and 4 and points 2 and 3 would probably be largely irrelevant in this context once points 1 and 4 were passed.
If you’re referring to theSDMB Avatar userscript that is utterly incorrect nonsense. There has been some discussion about an avatar suggestion feature that suggests images for various poster’s avatar based on a variety of criteria.
For what it’s worth here are some of the avatars displayed in this thread, including Antigen’s.
The suggested avatars in this case are all images those posters have uploaded to their SDMB profiles - a very non-random suggestion.
And some do.
I don’t understand the point of “borrowing” the property of someone else to be used as your own personal identifier.
No, it does not. Unattributed use of an image without a purpose such as academic discussion, criticism or reporting is unlikely to be considered fair use by a court.
Fair use is mostly irrelevant, as are lawsuits. Step one will be a DMCA takedown notice or a C&D sent to the service provider (such as Twitter) or the web host. That will result in the image being removed, and possibly the account being suspended, depending on the rules of the service.
I happened to be in a position to ask, and it turns out the avatar service Gravatar does receive some DMCA notices for images. I can’t say how many.
The use of a given image as an avatar could always be considered commentary or criticism. Points 2 and 3 might not be considered irrelevant in some cases despite points 1 and 4 being so but in the context of an avatar I doubt it. With no commercial gain and no dilution or monetary loss as a result it would be incredible to see such a case upheld although anything is possible. A web host like Gravatar or otherwise honoring a takedown request is not evidence that there would have been a copyright violation ruling had the matter gone to court. I can’t seem to find one case that disputes this and there are hundreds of millions of avatars in use on message boards around the world.
Actually, what started circulating around the Internet was a still of her breasts taken from a video chat. I’m not sure where you got that it was an avatar.
This is a good read on the subject of fair use of online images in general. Obviously the question of message board avatars is so trivial neither the law nor most discussions about it deal with them specifically. It is comparable to a child wearing a Halloween mask they made by printing an image from the internet and cutting eye holes in it.
An important distinction is also that avatars are usually nothing more than a link to the ‘original work’ and not themselves an attempt to reproduce or take credit for that work.
Can you find an example where unattributed use of an image without specific commentary or criticism about that image has been found to satisfy s 107 (1)?
Merely saying something is commentary doesn’t make it satisfy fair use requirements. The supreme court has specifically said that the use has to add value or be transformative. An avatar is incidental, decorative. Unless you can argue that it’s somehow necessary to your commentary, I don’t see that satisfying the transformative factor.
This is true. I mentioned it as a data point relevant to the OP.
This is not the case for avatars on Twitter, Facebook or Gravatar. And the OP is about Twitter.
Isn’t the more pertinent question: Can you find an example where a court ruled the use of an image as a message board avatar was a copyright violation? There are millions in use out there. And incidentally attribution has absolutely nothing to do with copyright or fair use. That might apply to plagiarism but not fair use. Fair use means no attribution is required.
There are companies like Apple who fiercely guard their copyright and trademark rights online even in totally trivial uses. How many online avatars do you suppose are apple logos or computers or screenshots from iphones? As you noted these things might be settled with a cease and desist notices instead of lawsuits but those would be widely discussed on the internet if they were taking place at all. So either Apple doesn’t have a case, or it is so irrelevant even to them that it isn’t even worth sending C&D letters despite a history of ferociously going after any website or publication that might be considered even slightly out of the bounds of fair use.
One of the points discussed in that piece I linked to is that copyright and fair use interpretations always attempt to balance both the rights of the creators of works and the public’s interest in using them, and courts tend to lean toward the public’s interest over the creators in almost all cases where no monetary damage can be shown and the creator of the work wasn’t deprived of their right to first publish the work.
The discussion drifted a bit from the specifics of the OP, but taking that specific example the linked image is a green box with the words “Science. It works, Bitches”.
It is a slogan on T-shirts and coffee cups, etc. for sale by the website the OP linked. Since we’re talking OP specifics, which is probably not a bad idea, the OP’s image is licensed under the Creative Commons as free for any non-commercial use. So the OP is in no way required to prove fair use and is free to use it as a message board avatar anytime and anywhere she wants.
Her video. At 2:38.
