12 Most Picture Perfect Ways To Ensure You’re Legally Using Online Photos

12 Most Picture Perfect Ways To Ensure You’re Legally Using Online Photos

For generations, a picture was worth a thousand words. Now, in the social network age, a picture is worth a few hundred likes, some +1’s, a handfull of retweets, stumbles, tumbles, pins, and shares of all sorts. Oh, and those original thousand words.

Using images in our online work is crucial. It’s a visual medium and how better to tell your story or draw in your audience than with a compelling photo? But while some may be flattered you’re using a photo they took or image they created, most are not. Besides all the SEO and search-engine ranking reasons, using someone else’s work without their permission is not only wrong but also may be illegal.

US Copyright laws may be years behind the fast-paced world of social media and blogs, but they still control how a copyrighted work can be used. And while there are aspects of Copyright law that have “gone digital,” the Digital Millennium Copyright Act doesn’t provide anything new when it comes to explaining how to properly use another person’s photos or images online. And because most people won’t read the law and even those who do may not understand exactly what it means, I offer you these to help you:

1. 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. There may be other exceptions, but the general rule is if you make it, you own it.

2. Plagiarism and copyright infringement are not the same

While it is difficult to detect visual plagiarism, when it does occur it’s not a legal problem. 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 can not.

3. 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. Common sense may say that an artist wants exposure for their work, but we’re talking about the law here and common sense doesn’t always parallel. Copyright law gives the copyright holder the right to decide where their work is published and maybe they don’t want their work on your site, in your book, included in your newsletter or distributed to your social media network. It’s not for us to question why they wouldn’t want “exposure.”

4. 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. Not everyone will say yes and we all have our reasons why we wouldn’t, but most will. And if they say no, that’s OK too because then you just move on and won’t have to worry about your site going down because of a DMCA takedown.

5. 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. I know you’re thinking I’m making this up, but I’m here to tell you that not all free images are low-quality, random pictures of wildebeests or clowns. 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 and in most cases you don’t have to provide attribution. Check the terms of the site to determine if attribution is required and, if so, follow the requested format.

6. 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. Also realize that the owner may change the license after you use the image and may that trigger a request for removal. It is important to know that a Creative Commons license is non-revocable, although explaining that to someone who didn’t read the license they assigned to their image could be a waste of time.

7. Different uses come with different obligations

It may be acceptable to use an image, as is, on your blog, but you may not have the right to use that same image in a paid newsletter, book, video or other type of work. Unless the image is in the public domain or you are the copyright holder, you have to consider the use(s) granted by the copyright holder or license. A copyright holder may be agreeable to certain uses but not to others.

8. 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.

9. 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. Indeed, every one of those selfies with duck lips on Instagram is subject to copyright, as is that photo of a flower (or cloudscape, animal, cocktail, etc.) that would go great on your blog. Copyright laws are often blurred with the sharing mechanisms on many of the social networking sites. 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.

10. 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. Few design agreements address this issue, which leaves the site owner legally responsible for copyright violations. While a designer may not be willing to modify their contract, it’s worth asking (1) if they will, (2) where do they source images, and (3) if the image they use is found to violate a copyright and you’re required to pay, will they indemnify you.

11. 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. Using one of the many photo editing software products to change the image to something that suits your particular use will not create a new copyright for you. We see this a lot, especially on the many social networks we belong to.

12. Just because other people do it doesn’t make it right

Unfortunately, Copyright law doesn’t care if “big name person” appears to be getting away with copyright infringement while “the little guy” isn’t. Because copyright is very personal, a great deal of enforcement rests with the copyright holder. As we all know, there are some people online who just don’t care that laws exist or somehow believe the laws don’t apply to them. It’s unfortunate and unfair, but the reality is that copyright law is not equally applied across the Internet. Having the ability to do something doesn’t mean it should be done.

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.

What has been your experience with using images online?

Featured image courtesy of stock_xchng.

Photo illustration work: Paul Biedermann, re:DESIGN

Sara Hawkins

http://sarafhawkins.com

Sara Hawkins is the creator of a Blog Law series to help other bloggers, entrepreneurs and online professionals gain legal confidence. Her goal is to make the law understandable and approachable without being overwhelming.

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80 comments
Chris
Chris

Hi. I saw a photo and what I did was I went to the Twitter account of the owner of the photo, asked the owner if I can edit it and use it for public use. If the owner says yes then is there anything else I have to do? Please email me at chrislox64@gmail.com

Mair_iii
Mair_iii

Hello,

How Can i use celebrities' pictures on my private blog without being copyrighted?

My blog is private but without any kind of ad;

If I take a pic from Google without rename it or change the credit and refer from where I took it, namely the source, am I covered with the copyright of this pic?

Please help me to find a legal way to use pics without paying an agency as I do not make any money from my blog.

Thank you

Sara F. Hawkins
Sara F. Hawkins

@Mair_iii 

First, Credit would be given to the person who took the image not the website where you found the image. It also doesn't matter what you call the file. If it's one from an agency such as Getty, they have metadata coded in and have bots to search it. Second, celebrity images present unique circumstances because the celebrity is not likely to be the copyright holder and yet, the celebrity has owns the right to publicity with regard to their likeness.


Whether you make money on your blog is not necessarily a relevant question when it comes to copyright infringement. As such, when examining Fair Use, it's a consideration but it's just one criteria.


As neither I nor any other lawyer can provide you with legal advice, you would need to seek counsel to obtain a more definitive determination regarding your site.

PattyS
PattyS

I saw an image on laidget.com.  It says at the very bottom of the site:  "Any content, trademark/s, or other material that may be found on the Laidget website that is not Laidget’s property remains the copyright of its respective owner/s. In no way does Laidget claim ownership or responsibility for such items, and you should seek legal consent for any use of such materials from its owner.Index Wallpaper: home interior #"

The disclaimer here alerts me that I may need to pay someone to use the image.  However, I don't know how to find out who I need to pay.  

Please advise.

thanks!


chelsea1955
chelsea1955

Is there an internet site that can be used to see if images posted by one group may be property of another entity? I understand there are sites to check on copyrighted names and trademarks, but do not know about images. Thank you.

Sara F. Hawkins
Sara F. Hawkins

@chelsea1955 unfortunately there is no clearinghouse to check who owns the copyright on an image. Google Image Search and TinEye are both good search engines to see what other sites may have the same image posted. Often by looking at dates and finding the original posting you can find the copyright holder or information about the image creator. Hope this helps.

ArmaunRouhi
ArmaunRouhi

Hello,

I manage a student run medical publication at my high school. We distribute copies to students at our school free of charge with the purpose of educating them about the medical field that is covered in that specific issue (Neurology, Cardiology, etc.). However, for our upcoming issue on Neurology, we require high quality, scientific images of neurons, brains, and neural cells, among many other items. Because we are affiliated with our high school, have a solely educational purpose, and do not charge readers for a copy of our publication, would fair use apply to our organization regarding these images?
Thank you.

OSC Center
OSC Center

We take pictures for our Facebook page and our website. No commercials or anything, we have a $100 advertising budget (50 for paper and 50 for ink, usually expected to last a couple months) so we just post them on our website. Recently (an employee of ours) someone complained and demanded we take off her pic from the website. 


I have thought about two possible solutions.


1. Just have a photo video etc release waiver be attached on the back of all membership forms 


2. Post a sign on all doors that "By walking into the Swim Center you are giving us permission to photograph you and place it on our website and or facebook page.  


I really feel like the second is the better choice but is this legal?? 

dani b13
dani b13

For design purposes does this mean if you find an image and draw from it or create a piece based on that image that you need the original makers permission? The original image needs to be your own theres no give and take here, you cant develop or rework something?

Thanks

Danielle

Sara F. Hawkins
Sara F. Hawkins

@dani b13 Ideas aren't protect and getting an idea from something then creating your own does not require obtaining permission. Many authors/photographers see a work and are inspired to create something of their own.

Reworking an existing work may have implications under the Derivative Works portion of US Copyright law.

Carly
Carly

HI sara

I write a blog and like to use images of quotes. How would these be 'owned' as such? Is there a way I can produce my own 'quote images'? Or can I photograph a quote or page form a book and use this if I took the picture myself. Very confused over what we can do. Thanks Carly

Dean the Burnout
Dean the Burnout

Hi, Sara. A quick question: To what extent does the use of public domain images and public domain films overlap? The reason for my asking is that I entertain the notion of generating memes or posting images to my magazine's website that are in the style of the Teevee Jeebies Shel Silverstein produced for Playboy back in the sixties. Example: "Angel and the Bad Man" (1946) is in public domain. Say I would like to use a still image of John Wayne and Jane Russell from the film and append a humorous quote beneath or within it (thereby bringing in the possible umbrella of satire, as well...?). Am I covered?  

Sara F. Hawkins
Sara F. Hawkins

@Dean the Burnout Public domain means that there is no copyright attached. This classification applies to images and films equally. With regard to any work that includes a likeness of a person (living or dead) there is an other layer to consider and that is what, if any, rights of publicity may also apply.

It's the right of publicity that many celebrities/famous people/public figures seek compensation for since they likely don't own the copyright to the visual work in which they are featured.

Many celebrities create companies to manage request to use their likeness. Even back in "the golden years" celebrities would create a company and assign the rights so that after they died their family could have some control over their likeness. Even without the benefit of having created a company, there are several states (California in particular) that created laws to preserve an estate's ability to own or control a dead celebrity's right of publicity.

As this is not the dispensation of legal advice, you may want to consult with an attorney who practices in this area to properly evaluate your plan.


Chris
Chris

Thank you for the post - it was very informative. It does however bring up a question. If someone owns (for example) a food blog where they take photos of their own recipes, then someone else posts a link to the article using Facebook, is this legal? Facebook is technically storing photos that are copyright locally on its website for others to see. Thanks again! - Chris

Juliya
Juliya

Dear Sara, 

We want to publish photos of famous photographers both living and those that are not and write a brief story about each of them. 

Can we post these photos adding a line below them saying (c)? Or we shall find someone who owns these photos and ask for their approval?

Please, advise.

Best wishes,

Juliya 

Dave
Dave

Hello Sara - Great article and a link to my favourite site: Morguefile.

Can I ask about public domain images? 

We use them and they imply product endorsement eg. a photo of a young person writing next to text about a school survey. 

OK or not?

BW

Dave

tgo8222
tgo8222

Hi sara

If i take a phto of a live sport on the tv using my camera does that image belong to me or is that copyright

Sara F. Hawkins
Sara F. Hawkins

@tgo8222 Most TV broadcasts are shows subject to copyright. If you take a photo of the TV the photo belongs to you but you may be limited with what you do with it due to copyright laws. Taking a photo of a copyrighted work does not grant you a copyright in the underlying work.

RTelleen
RTelleen

If I purchase images for a PowerPoint presentation, and then make that presentation available to others on-line is that ok?  The document is not locked.

Sara F. Hawkins
Sara F. Hawkins

@RTelleen It depends on what license came with the image(s) purchased and to whom and how the deck is made available to others. It's definitely very fact specific.

Phil
Phil

Hello Sara,


Great article. My son took some pictures of an abandoned house and posted them to his personal website. Another individual has sent him a DCMA indicating that my son has copied his pictures and therefore infringed on his copyright of the photos that he took. The pictures that my son took are nothing like the ones the other individual took. The only similarity is that they are of the same location. The other individual is trying to say that he has a copyright on the location and therefore his photos are infringed upon. To me this is ridiculous. It's like saying that a particular individual has a copyright on the Grand Canyon and you can't take pictures of it. Again, his pictures, which my son did not even know about were never copied or posted to any website in the public domain. My son took his own pictures. I believe that it falls under point #1. Does this fall under copyright infringement in any way.

Sara F. Hawkins
Sara F. Hawkins

@Phil Buildings may be subject to copyright and can limit what is done with photos taken of those buildings. However, let's assume the building is not copyrighted. Two people can set up a camera on a tripod in the exact same location with the exact same lighting and produce virtually the same image and each person would independently obtain a copyright in their work.

Using the Grand Canyon as an example doesn't work because there is no copyright in nature. However, because a building may be subject to copyright that would be the copyright holder that could raise issue on certain uses of images taken.

One does not obtain copyright on a location simply by photographing it.

RobynsWorld
RobynsWorld

Sara do you have, or know of, a post that walks folks through what all the creative commons rules are? On the creative commons page I am just simply confused by it all. I need a Creative Commons for Dummies on how to actually use those images that say I can and what information to include with it, etc. 

Jay
Jay

Hi Sara!



#11 "Making changes to a copyrighted image doesn’t make it yours"


- but is it then legal to use as a company logo?


Thanks.



- Jay

Sara F. Hawkins
Sara F. Hawkins

@Jay You may not use a copyrighted image as a company logo unless you obtain the appropriate rights to use the copyrighted image for commercial purposes. This also raises potential trademark issues along with the copyright ones.

Mark187thumper
Mark187thumper

What about if I paint my interpretation of pictures and photos would that be ok to publish in my book?

Sara F. Hawkins
Sara F. Hawkins

@Mark187thumper you should consider speaking with a copyright attorney to obtain a legal opinion regarding exactly what you want to create and publish as the area of copyright known as "Derivative Works" is complex, especially when you want to include it in a commercial work. The risk is, if you do, in fact, violate a copyright the copyright holder may have claim to the profits from your book.

Melissa74
Melissa74

Great article Sara, I've linked it to some students in my communications class, we got a blanket warning about copyright infringement in our assignments today, and I cited your Blog as a reference for more information on Copyright and Fair Use. I think in the education field students should be taught to respect the legal boundaries, but also to understand that they are not absolute. What an interesting and emerging field of Law to be in!!!

Sara F. Hawkins
Sara F. Hawkins

@Melissa74 Thank you. It is a very interesting part of social and online media. The sooner we can educate students on how to properly use, cite, and credit images online the better experience they'll have both as users and creators.

keri the photographer
keri the photographer

HI,

Im a semi professional photographer, who volunteered at my kids school to photograph christmas program in hopes to make profit by selling photos after directly from my website.  One of the parents wants all photos removed of their child (who is the main subject in almost every photo). I password protected the album, but still the parent is insistent on me taking images down. Do I have to do so? the preschool does not have a photo release signed by this parent.

Thanks

Keri the mom photographer

First Grade Teacher
First Grade Teacher

@keri the photographerYes. Even if they had a media release signed that only applies to the school. You are a third party and it would not apply to you anyway. You would have to get special permission from each parent in order to put their child's pictures online. So yes you have to take them down. Welcome to the bs that schools have to deal with. I bet that parent has pictures of their child all over their social network sight.

Sara F. Hawkins
Sara F. Hawkins

@keri the photographer The answer actually isn't so easy. The short answer is "Yes, you must remove the photos." The longer more legal answer though goes to whether or not your had an agency relationship with the school and were acting on behalf of the school (a la the company that takes the individual and class photos) and what type of expectation of privacy existed.


People in public, according to the courts, generally, have little expectation of privacy and thus photographing people in public does not usually require the permission of the person being photographed. That doesn't mean people don't ask, but the general rule requires a look at what expectation of privacy exists. As a school program is likely open to the public the expectation of privacy may be minimal.


The next concern is, if you are acting on behalf of the school, is there a safeguard regarding who can purchase photos of other people's children. This isn't so much of a legal concern as it is an ethical one many professional portraiture photographers face. If you were acting on behalf of the school then the parental release, if one did exist, would guide as to how the photos can be used/shared/displayed.


In reality, which is often very different from the law or ethics, many parents don't like photos of their kids on public display by people they have not authorized to take and/or display photos of their child(ren). Given that the photos are accessed only via a password, there could be an argument that the images are not, in fact, available to the public. But, it comes down to how much you're willing to push back when this parent gets in your face.

Bill the Cat
Bill the Cat

Suppose an author scribbles a design on a pece of paper that is a very generic shape, such as waypoints on a compass, then uses it in a book. Then a similar design is used on a TV show that uses the waypoints too, but includes a "hub" around the waypoints. Would that be plagiarism? Since the design is so basic, I would think that it would not be.

Sara F. Hawkins
Sara F. Hawkins

@Bill the Cat many "generic" designs enjoy copyright protection. However, copyright doesn't prevent another person from independently creating a similar "generic" design. No, you can't just re-type a book and call it yours. But when it comes to evaluating the level of originality it would likely be very low and possibly not sufficient to even give rise to a copyright. It's definitely a case-by-case basis.

Plagiarism is not a legal paradigm, rather an ethical one. Plagiarism is passing off someone's work (copyrighted or not) as your own.

MrG
MrG

Are timelapse videos of celebrity portraits legal? Do they not count as educational in nature? There are a number of very popular youtube accounts which specialise in these types of videos, and some of these videos have been up for years.

JamiMerrittSchultz
JamiMerrittSchultz

Ok.  A person posts a picture of an old building in our town on a FB group about our town.  Someone else copies and posts that picture to another FB group about the same town.  Is that copyright infringement?

Sara F. Hawkins
Sara F. Hawkins

@JamiMerrittSchultz Copyright infringement is the unauthorized use (distribution, reproduction, publication, etc.) of a copyrighted work. There are also exceptions to copyright infringement, the most well-known being Fair Use.

There are too many unknowns in the scenario you describe to know if the second copying/posting is an infringing use.

Hypothetically, though, if the second person did not have authorization from the copyright holder or did not use the "share" functionality of Facebook it is quite possible the further distribution could be copyright infringement. 

Grieving Parents
Grieving Parents

A so-called "friend" is using photos and videos of our son who recently died. He's posted them everywhere on the internet, including the photography business site he's trying to get started. His videos include the one from my son's memorial. He also posts photos of my son's ashes and the accident site. Some photos were taken by others and some by him. He recently began posting photos of my baby grandson on both his personal websites and his business websites. Is there anything we can do to force him to remove these. This situation is just crushing us. My son never like Facebook, etc. Please help us

YinanChen
YinanChen

You really only have to have a model release if you plan on using the person's photo in an advertisement to endorse a product. For public domain images check out http://www.goodfreephotos.com .

RonK
RonK

Just for clarification, I'm referring to a "model release" signed by the subject of a photograph, granting permission for me to publish the photo as specified. This is obviously different than the "photographer" having copyright of the photo; it's the "subject" giving permission.

By the way, great information. Definitely got me thinking about how we do business.

RonK
RonK

I've read your complete article, "Copyright Fair Use and Online Images", as well as the US code, and am fairly certain that my purpose for using images falls within the "Fair use doctrine" you mention. We are a gov't agency and provide training programs and presentations to other gov't agencies. We use images in our training manuals and powerpoints. I think what we do would fall under the educational provision, and we are also non-profit. My question though relates to using images of people. Even though I may be covered under "fair use", do I not need a person's permission to use their photo? That's an easy fix for me to have them sign a waiver if it's me taking their picture, but what if I copy a picture of a person from a website or other source? Does the law still require that I somehow get their permission? Sorry if this strays from your area of expertise, but since they overlap, I thought I'd ask.

Thanks.

Colcio
Colcio

If people don't want images to be copied,why can we physically copy them? Many sites has this function disabled. You don't want anyone to have your image,at least disable the right click,simple as that.Otherwise people will use photos of f the internet, and I am all for it.It is like leaving money on the sidewalk and waiting for someone to pick it up and than suing this person.

JonathanAbrams1
JonathanAbrams1

Perhaps I should explain how I use the photos (all from creative commons, which is limited, why I want to know about legality of using non-creative commons Google pics)

A recurring feature on my blog is a parody of Dark Shadows, called, Dreams of Vermilion Shadows. The characters' names are takeoffs of names used in Dark Shadows.  For example: Elizabeth Stoddard Collins, in my takeoff, becomes Beelzebeth Doddard Rollins.  I put an old photo of Joan Crawford at top, with this character's name underneath. Plot and dialog are completely my own.  You can go to site to see what I mean. (this isn't a plug, just so you can get a better idea of what I'm talking about. http://mywretchedlittlebrain.blogspot.com/ 

If this question isn't for your blog I understand.  Thanks anyway.

Sara F. Hawkins
Sara F. Hawkins

@JonathanAbrams1 see the comment below to determine if the work may still be subject to copyright. There is an added twist when using images of people, famous people especially. Publicity rights, and the ability to control how your image is used, are often very complex. The California Celebrities Rights Act allows for protection up to 70 years post-death. Furthermore, there are posthumous licensing rights that may preclude wholesale use of a celebrity's likeness. There is a distinction between copyright and trademark when it comes to using a person's likeness which complicates the discussion and takes your question beyond the scope of this article. If you have concerns, you should contact an attorney knowledgeable in defending against claims for use of images of deceased celebrities.

JonathanAbrams1
JonathanAbrams1

Google has tons of images of actors and actresses take from old time movies.  Can these be used in a blog that parodies an old time movie or TV show?  And how exactly do you find out who owns the rights to all those photos from movies going back to the 1940s and earlier?

Thanks

Susan
Susan

Great article, Sarah! When using public domain images, can you put captions and/or website url on the image?

Sara F. Hawkins
Sara F. Hawkins

@Susan With public domain images, there is no copyright restriction so you're free to do with it as you see fit. That being said, if your additions are sufficient to create a copyrighted derivative work then you could gain copyright in the added features or modifications but never in the underlying work.

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