Everyone loves to capture moments in time through photographs, and furthermore we all love to share them with our friends and family. Before the wave of social media, we would get our film developed and then make duplicate photos (which of course we paid for) and then send them to our families. No harm; no foul. There was no “liking” photos, “sharing” photos or even “pinning” photos (unless however, we were pinning them to a bulletin board or on our mirror). Well now, we find photos everywhere online, and oftentimes the photos are those taken by people other than ourselves. In lies the problem. We like these photos so much that we want all of our friends and family to see them too. So what do we do? We “borrow” them for a time for the world to see. Sounds harmless. Realistically, people put the photos on the Internet for people to see, right? Well, not so quick. Let’s look into this a little more deeply.
- Did you take the photo or create the graphic?
If you took the photo or created the graphic and are not subject to a Work For Hire agreement, then you likely own the copyright and can do whatever you wish.
- Plagiarism and copyright infringement are not the same
Plagiarism is an ethical concern that may have other elements of intellectual property theft tied with it. Copyright infringement, on the other hand, is illegal and carries with it potentially significant consequences. Plagiarism can be avoided by providing attribution and giving credit, copyright infringement cannot.
- Attribution does not make it right
Taking another person’s image or graphic and giving them a “shout out,” linkback, or any other type of attribution does not negate copyright infringement.
- Ask and you may receive
That same person who decides to send a DMCA Takedown Notice may have said yes if asked. Most people are rational and will agree to let their image or graphic be used. But they want the decision to be theirs and they want to allow it on their terms.
- Avoid all problems and use public domain images
Sounds simple, but most people don’t even realize that there are tens of millions of high-quality graphics and photos available for the taking. There are many websites that curate images that are in the public domain and allow users to upload images they’re willing to put into the public domain. With public domain images you’re free to use them in any way.
- Understand the Creative Commons license you use
There are several photo-sharing sites where users can allow others to download and use images under one of the several Creative Commons licenses, all of which require attribution. Many people are happy to share their photos. But again, they get to decide the rules.
- Fair Use likely doesn’t mean what you think it means
Fair Use is a doctrine in Copyright law that basically says you’re allowed to infringe someone’s copyright and they can’t demand anything from you. It may sound simple, but it’s one of the most complex parts of Copyright law. So complex that there are very few cases to look to for guidance. Copyright Fair Use for online images does exist, just not in the way most people believe it does.
- Assume every image you find online is copyrighted
The excuse that the image didn’t have a watermark or a “©” to show it was copyrighted doesn’t work. Most works first published after March 1, 1989 do not require a copyright notice, which is great given the speed we can upload photos at today. At the same time, this lack of copyright notice has some people believing that there are no restrictions to its use. However, as soon as an image is taken from one platform and used on another, there may be problems. And while search engines are doing their best to provide copyright notice information if it applies, please don’t assume that if it’s not there in your search that there is none.
- Your website, your liability
One of the most common explanations I hear when someone gets a “cease and desist” or a DMCA takedown for an image used in their website design is that they didn’t choose that image. “It’s the designer’s fault!” is not a defense to copyright infringement. Not all web designers understand copyright laws, but that won’t relieve you from liability if a copyrighted image is used without permission or license.
Making changes to a copyrighted image doesn’t make it yours
If you don’t have the copyright in an image, changing it so it looks different doesn’t relieve you from potential liability. You can’t create a new work and call it yours if you don’t own the underlying copyright. Adding a favorite quote or other text to an image doesn’t negate the underlying copyright.
Copyright law is very complex but you don’t have to be a lawyer to understand the basics. When it comes to using images online, trust your instinct. If there’s any tinge of uneasiness then reconsider or do some research. In many ways, copyright follows the golden rule.