Have you heard the familiar story of a casual blogger who knows that a blog always looks better with a photo? Not being a professional photographer, and not having a ton of money to pay for professional photos, she found great images for her blog by searching Google and selecting images from the Internet. All of her friends are using the same process and they all agree that these images should fall under the “Fair Use” doctrine. She copies and pastes the images to her blog and uploads it to the Internet. Two weeks later the photographer who owns the picture contacts her demanding payment. In the end she pays a large chunk of money for legal fees and to the photographer for her use of the photo.
Following are the issues you should consider before using any image on your blog or website.
Copyright infringement is defined as the use of works that are protected by copyright law, without permission. These works can include, photographs, poems, literature and movies among other creative, artistic, intellectual or other forms of works.
Is the Image Your Original Work?
As soon as you snap the shutter or click the button on your smart phone camera, the photo is yours and is protected by US Copyright Laws. If you are not covered under a Work-for-Hire agreement or any other exceptions, you may distribute, display, prepare derivative works and reproduce the image.
It is not necessary for you, as the creator of the work, to register or file any paperwork to obtain the Copyright. The Copyright is automatic and in most cases the symbol (©) is not required on your images to afford you the protection. Conversely, just because an image does not display the copyright symbol does not mean that it is available for unlicensed use by others. It is important to note that you will have to register your work if you plan to file a lawsuit for copyright infringement.
The Website Creator did it!
It’s your website and you are responsible for the content. It is incorrect to assume that all website designers are knowledgeable about or choose to follow the Copyright Laws. Denying knowledge about where a photo was obtained is not a defense and you could still be guilty of infringement. It is essential that you have your attorney review any contracts you enter into to reduce your risk.
Copyright Fair Use is often misunderstood as a license to use copyrighted material because it is an exception that allows legal use of a work. As stated by the U.S. Copyright Office: “Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes … Whether a particular use qualifies as fair use depends on all the circumstances.”
Section 107 of the Copyright Law outlines four factors used in determining whether or not a copyrighted work use is “Fair Use”.
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
All four of these factors must be used together to determine Fair Use and there is no formula (e.g., number of words, size of photo) to determine absolution from infringement violations.
An example of Fair Use is a restaurant review on TripAdvisor. You have experienced an exceptional meal and the photos on your smart phone don’t do the meal justice. You search the Internet and find a photo of the items you enjoyed on the restaurant’s web site and attached it to your review. The restaurant photo would not take the place of the actual meal so the owner should be minimally affected. This use of a copyrighted image would likely be permitted under Fair Use.
This is a complex issue that will not be dismissed by ignorance, attribution or disclaimer. If in doubt, it is best to seek legal advice to help determine if the image you plan to use falls under the Fair Use doctrine.
Stock Images are available to purchase and download online for a specific use from many Internet sites. Selecting images from sites like Flickr, BigStockPhoto, Shutterstock or GettyImages is easier and less expensive to add visual interest to your webpage or blog without hiring a professional photographer. There are two main types of stock images, rights-managed and royalty free.
Creative Commons Licenses
Creative Commons is a nonprofit organization that allows sharing of copyrighted images with restrictions based on the rights the individual creator wishes to reserve. These restrictions can include whether or not the image can be used for personal or commercial use and how to credit the photo back to the copyright owner.
Flickr, an image hosting website and one of the first to have a Creative Commons license for images, gives photographers the ability to share their photos and determine under what circumstances those photos can be shared. Currently there are well over 200 million on the site- establishing Flickr as one of the Web’s single largest source of CC-licensed content.
Sometimes, even the most common symbols we see in our everyday life have received copyright protection. One of the most famous sculptural works of art ever copyrighted, and perhaps the largest, is the Statue of Liberty. Designed and executed by French sculptor Frederic Auguste Bartholdi he obtained a copyright on Aug. 31, 1876. The Copyright Office issued copyright registration number 9939-G for the “Statue of American Independence” as the Statue of Liberty was first named.
These are but a few of the issues involving using images that you do not own. If you need legal advice about using an image or if you have been contacted regarding the illegal use of an image, contact Siddel Law – we can help.
Disclaimer: This article discusses general legal issues, but it does not constitute legal advice. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction. Siddel Law expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.