As simple as it is to find images online, one could be forgiven for thinking it is just as easy to know which images may be used. Unfortunately, the complexities of copyright law and the limited awareness of its rules can make the process of finding and using images a potential minefield for businesses. No matter how widely used and well known an image may be, if it is still subject to copyright it is not within the public domain, which means you need permission to use it. And fair-dealing defences to infringement are typically narrower than might be expected.
Tools such as TinEye or Google’s search by image mean it has never been easier for copyright owners to discover infringing uses of their images online. So, it is imperative to take precautions, and seek legal advice when using images, particularly online.
Who is the owner?
For the copyright-savvy, investigating who owns an image is always the first step before using it. Having identified the owner, you can seek permission directly from them, or find out how else to obtain a licence.
Still, misconceptions abound regarding ownership of copyright. Many mistakenly believe images are owned by publishers, or that the operator of a website or the owner of a newspaper is the person who may give permission to use a work. In reality, they may just have a licence to use it, or even be making infringing use of the image themselves. Generally, under the default rules copyright belongs to the creator of a work protected by copyright. For images like photographs it is the person who arranges the photography who owns the copyright and otherwise the photographer. A graphic designer or a painter would be the owner of copyright in any work they produce. But ownership can be assigned, and images created in the course of employment are normally owned by the employer.
The complex rules around copyright ownership mean that it is not always straightforward to know who owns the copyright, and therefore, it can be difficult to know where to apply for permission. Even having identified the apparent owner of copyright in an image, you might discover later that you were mistaken. “Innocent” infringement like this will not find sympathy in the courts. It is the duty of the party using an image to work out whether they are entitled to use it or not. Unless you can identify the owner of copyright with certainty, it is worthwhile seeking an indemnity from your sources to cover your losses if it transpires that your use is infringing.
Thus, the easiest approach for businesses is often to buy images from stock libraries or to find images available under a Creative Commons licence.
Well-known image libraries include iStock, Getty Images and Shutterstock. Thousands of images are used from these libraries every day. There are a range of licences available, varying according to how you intend to use the photographs.
With Getty Images, for example, if you intend to make commercial use of a photo multiple times for multiple projects you might take out a royalty-free licence. They also offer specific licences for editorial use of the works, and their rights-managed service allows you to specify the particular rights you need.
Commercial libraries typically charge per image, although costs can depend on your intended use. Some of the significant advantages of using well known stock libraries is that they typically offer a vast range of content for any occasion, their material is available in a range of formats and resolutions, and most importantly, you are protected, to an extent, against infringement.
iStock, for example, indemnifies you up to $10,000 if it comes to light that one of their images is found to infringe and this can be increased to $250,000 for peace of mind.
If you are dealing with a less ubiquitous stock image supplier, you should exercise some caution and it is always advisable to check the terms of the licence you receive to ensure it is adequate for your needs and includes appropriate warranties and indemnities such as the above.
Creative Commons is an organisation which helps creatives to share their work with others by offering model licensing terms. Generally speaking, a Creative Commons (“CC”) licence, surrenders some, but not all, of the author’s rights under copyright law. An advantage of CC licensing over other “copyleft” licences, is that the terms are standardised and widely understood. This makes it easier for a search engine, such as Google or Flickr, to tell you what rights you have to use an image.
Although only Creative Commons is discussed here, there are many interesting approaches to permissive licensing out there but a discussion of every permutation is outside the scope of this article.
Creative Commons licences vary significantly. At one end of the spectrum a pure Attribution licence could be entirely permissive – allowing you to use the image commercially, share the image and modify it, provided you attribute it to the original author.
On the other hand, a CC BY-NC-ND (Attribution, Non-Commercial, No Derivatives) licence would enable you only to use the unaltered image in a non-commercial context, giving credit to the author.
So, as with commercial stock image libraries, it is important to check the terms of any Creative Commons licence covering use of an image you are interested in.
One drawback of Creative Commons searches is the risk that the uploader of an image was not the copyright owner and therefore did not have the right to make the image available in that way. As discussed earlier, innocent infringement remains infringement, and you could be held liable in such circumstances. If an image is so valuable to you that you must use it widely in a commercial context, where your exposure to liability is increased, then you should consider investigating to confirm the identity of the original owner, if possible.
Even then, you might want to ask for assurances that they are in fact the owner, as there is a risk they might have assigned it, or that it is in fact owned by their employer. Practically speaking, even such assurances may be of little use, unless they have the funds available to cover your losses when you need to rely on them. So, for significant, high risk, public and commercial uses of an image it is generally best to rely on better known institutions where feasible.
That does not always mean there will be a cost involved. For example, Getty Images recently released tens of millions of images for use at no charge in certain situations. The restrictions are significant, for example, you will need to embed the images on your website or through social media using Getty’s system which may collect analytics and other data. You are permitted to use the images only in relation to events which are newsworthy or of public interest and you may not use them for any commercial purpose. Nonetheless, this seems a very useful source for some demographics, such as bloggers.
The complexity of copyright
If you take anything away from this article, it should be that copyright law is not as straightforward as you might think. Using images found online can, and does, lead to litigation and expense. You should never assume that you are free to reuse anything you find, and for any significant project it is best to go to a little expense to ensure that you are not exposed to liability. In non-commercial situations you will have more options, but even then, as always, you should carefully consider the terms of any licence involved.
The reality is that it can be near impossible in some cases to guarantee you are free to use an image, but what is important is that you are aware of the risks and manage them by making an educated decision, taking expert advice where the outcome really matters.
Shireen Smith is an intellectual property lawyer and published author of Legally Branded, a book which seeks to make intellectual property and internet law more accessible. She founded Azrights Solicitors in 2005, with the aim of making IP easy to access.