Online Images – Free to Use?

Originally published by Cleve Clinton.

Having won her primary, Starr Struuck is ready to update her campaign website and Instagram feed to jazz up her image and promote the reasons why she should win the general election. Having been chastised by Captain Kurff of Star Warp’d who tweeted Struuck to take her personalized and autographed photograph of the two of them at the Comic-Con convention off her newsletter and website, she remains determined to stick with her Star Warp’d theme. A Getty image photograph of the Starship Enterprise circling an unknown planet is now pasted across her social media. This time Getty images complains. Again, Struuck insists that she was merely publicly confessing her affection for geeky space adventure shows. Is Getty in the right to complain and demand to be paid?

 

Almost certainly so.

Copyright

As my colleague Travis Crabtree blogged last year, the copyright laws protect original works of authorship including artistic, literary, dramatic and musical works, such as photographs, graphics, poetry, novels, movies, songs, computer software, and architecture. The creator of a work has a copyright regardless of whether it is filed with the U.S. Copyright Office. Meaning, if you take the picture, then generally you own the copyright. While there must be a registration to file a copyright lawsuit, not registering does not lessen the right to claim ownership of something that you created.

Assume Google images are protected by copyright. Adding a few new words to someone else’s picture is not likely to transform ownership to you.  And, there are many more such myths when it comes to efforts to avoid copyright claims –  myths that abound on the internet. None of these will relieve you from liability:

• Attributing the photo to the original photographer/illustrator in the caption
• Linking the photo back to the original source – although it’s better to link than to copy.
• Making changes to the copyrighted image
• Only using the image on social media
• Placing a disclaimer on your website stating that you don’t own any of the photos and that all rights belong to the original creator
• Embedding the photo into your website using the original source URL instead of hosting it on your server
• Uploading a smaller-version / thumbnail of the image
• Using an image that doesn’t have a copyright symbol or watermark on it. The lack of copyright notice does not indicate that the image is free to use.
• Taking the image down immediately following a Digital Millennium Copyright Act (DMCA) notice. Taking the image down is necessary but does not remove your liability.

Tilting the Scales in Your Favor

Tips and best practices for copyright and using Google images:

1. Your Photo. It’s better to use your own photos and images. Beware if you took the photos as part of your job or if you use a model. Both require additional attention.
2. Find Free-to-Use Photos. Google is searchable for free photos. Even Google has a non-commercial limitation on the use of its products.
3. Prefer images with a Creative Commons (CC) license. Know that even a CC license has limited contractual rights with its own terms and conditions – and perhaps different uses.
4. Purchase images. The “purchase” is almost certainly a license with specific usage rights and limitations, and not ownership. Again, pay careful attention to the specific terms and conditions (to which you have agreed). For example, posting the image on your website might be okay, but may require more to use the image on the front cover of a print book.
5. Seek permission. First, confirm they actually own the copyright in the image and can give permission for use – that they were not created at work or assigned to someone else.

And then there’s the “fair use” argument. Often overused, however, it’s worth considering. If the image is used for an educational, nonprofit, scholarly, reporting, reviewing, or research purpose, then it’s worth seeing if the other three factors for “fair use” can be satisfied.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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