A picture is worth a thousand words, but is it worth a copyright infringement lawsuit?
Using images found on-line has become common practice. Photos, graphics, book covers, illustrations, charts — people constantly use images on websites, blogs, and course materials to help enhance their writing.
And why not? Technology has made it quite easy to take gorgeous photos and share, so there are plenty of pictures zipping around the Internet for you to peruse, copy, and paste at your leisure. Plus, SEO guidelines suggest including pictures for better responses to text-based material.
Question is, are you legally compliant when using those images? Can you scan that book cover and save it on your website? Can you add a photo from the Internet to your blog article, or share it on Twitter, Facebook, and other social media platforms? Can you insert graphics created by someone else to illustrate points made in your course training materials?
The answer is, maybe, if you follow a few simple steps and gain the correct permission to use the image. A little upfront work on your part will help you avoid being the recipient of a cease-and-desist letter, or a DMCA takedown notice, or worse, a defendant in a copyright infringement lawsuit. If you clear the necessary legal hurdles when using images from the Internet, then you might not need that extra glass of bourbon at the end of the day to help you sleep.
How, then, do you use copyright protected images and avoid running afoul of the copyright laws?
Copyright Law Tutorial
Copyright law is created via the US Constitution and gives the copyright owner of images, and all creative works, the exclusive right to control how that image is used, reproduced, adapted, and distributed to the public. In general, most images we see on-line are protected by copyright. Copyright protection is automatic. Once the image is created, the image is immediately protected under the copyright laws. There is no need to file for a copyright registration with the government to get a copyright. There is also no need to add a copyright notice on the image. However, you must file for a copyright registration if you want to sue someone for copyright infringement (see our earlier Sidebar Saturdays article on copyrights: Ten Things All Authors Need To Know About Copyrights).
Now that you know to assume every image is copyright protected, the first step is to decide if you need permission to use the image.
If you find a photo on the Internet that you want to use, look for the source of the image, i.e. who owns the copyright. If the image has a copyright notice (while not a requirement) it will have the name of the copyright owner. Often that information will be directly under the photo or somewhere near the photo, with a designation like “© 2017 Photographer’s Name.” Once you know who owns the copyright, and you know how to contact them, then ask if they will grant you a license to use the image (either free or for a fee). The license will give you rules and restrictions on how to use the image (like giving them credit, and the type of adaptions allowed). Follow the license guidelines and you are done.
Be aware that purchasing a license does not mean you own the image. You own the right to use the image under the terms of the license only. Nothing more.
Often people are under the misconception that all they need to do when using an image is give the copyright owner credit. Unfortunately, that does not cut it under the copyright law. You must get permission to use the image, which means get a license.
There are a few exceptions to the Get-Permission requirement.
1. Public Domain
Some images are in the public domain. This does not mean that because the image is on the Internet or because it does not have a copyright notice that the image is considered in the public domain. Public domain is a legal term, which means the image no longer has copyright protection. There are many reasons why an image might be in the public domain, which is a fairly detailed area of law.
In general, an image enters the public domain when the copyright expires. For example, any image published before 1923 is no longer copyright protected, thus it has entered the public domain. Images publish between 1923-1977 without a copyright notice are also in the public domain. The public domain laws are a tad confusing due to numerous changes after 1977. Here is a great chart from Cornell University I keep handy to help navigate what is in the public domain, as well as the copyright terms depending on various factors.
Other reasons why an image might be in the public domain: the copyright owner decided to release the image into the public domain; or the image was made by an employee of the federal government for their job.
If you need more information on Public Domain, I love Stephen Fishman’s Nolo Book The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More. The 8th Edition will publish soon.
2. Fair Use
The Fair Use exception allows the use of copyright protected images under certain circumstances. Like Public Domain, Fair Use is also a rather complicated area of law. Often it is hard to figure out what is considered fair use and what is not. The courts use a number of factors to determine if a particular use of an image is considered fair (like the purpose and character of the use, the nature of the copyright protected work, the amount and substantiality of the part taken, and the effect of the use on the market).
In general, if you are using the image for educational, research, commentary, or non-profit purposes, or if you are transforming the image to create a new meaning, or you are using the image in a fact-based context that benefits the public, like a news source — then your use of the image is considered fair use.
3. Useful Article
I am often asked about the use of book covers and if it is legal for someone to use these on their blog or website. Authors and publishers tend to like it when you share the cover of their books. They are, after all, in the business of selling. For them, it is free publicity.
While this appears to be a low-risk use of a copyright protected image, there are two other legally sound reasons why use of book covers does not violate the copyright laws. One is the “useful article” provision at 17 USC 113 (c), which states:
In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.
I would argue book covers are useful articles under this provision if the use is in connection with the advertisement or commentary of the book. If you need more information, here is a more in-depth article about this provision and book covers by Mary Minow on the Library Law Blog.
The other reason falls under Fair Use, which would be the use of the book cover in connection with a review or commentary of the book. Goodreads and you other book reviewers, Fair Use is in your favor. Sleep easily tonight.
Where To Find Images
There are a number of websites that offer licenses for free or at a minimal cost. There are also websites with images within the public domain. Most of the free images come with a Creative Commons license (like the photo used with this article). There are various types of licenses through Creative Commons so make sure you know and follow the terms and restrictions on the use of the image (e.g., attribution, commercial, non-commercial, attribution but no derivative uses or changes).
- Visual Hunt
- Creative Commons
- Flickr Creative Commons
- Wikipedia Commons
- Getty Images
- Wikipedia Public Domain Image Resources
Caveats And Cautions
A few parting words of caution (I am a lawyer after all):
Some images, the ones with an identifiable human, need a model release. A model release is a form signed by the identifiable person, allowing their image to be used for commercial or non-commercial purposes. Sometimes free images do not have a model release, so check before using the image. Websites that have stock images for a fee (like Getty Images, Shutterstock, or iStock) typically provide assurances that a model release is on file. When you find an image that you want to use, look for the model release form. Depending on the level of risk you want to take (is the image used for a blog article, or something more commercial like a book cover), be aware that you may need the consent of the person in the image if you want to avoid any hassles later on.
If you are relying on someone else to obtain the appropriate permissions, such as a web-designer, make sure they have obtained permission to use any images. Ignorance is no excuse. You are still responsible for obtaining a license to use any image on a website you control regardless of whether you did the actual design work.
Of course, there is always the lawyer fine print. The information in this article is for educational purposes only. It does not constitute legal advice or establish an attorney-client relationship. I am a writer, who is also a lawyer, helping other fellow writers learn about publishing law related issues. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation. Especially if you have specific questions about an image and if the public domain or fair use exception apply. You can read our full legal disclaimer here.
When you find an image you want to use, assume it is copyright protected. Then, decide if you need permission to use the image. Would your use of the image fall within one of the exceptions above? Is so, then permission is not necessary. If not, can you get permission from the copyright owner? Is permission granted via a license offered on the website where you found the image?
If you cannot get permission and you think your use falls outside the exceptions, then do not use the image. Save yourself some headaches and use another image. Find an image on a website like those listed above that can be used for free, or for a minimal license payment. Or, there are plenty of options for taking quality photos yourself. Why not improve your photography skills, snap your own pictures, and add that expertise to the slew of other skills you have learned in this tech-savvy world of the 21st Century.