Friday, October 24, 2014

Copyright Infringement: 25 Myths About Sharing Images Online (Plus 4 Ways to Use Images Legally)

Casey's No Copycat!
Casey's no copycat!

Anyone who shares images on the internet has a responsibility to know what's legal and what's not legal.  This is especially true of businesses and organizations.  Unfortunately, though, far more people are uneducated about copyright than are.  I can't even count the number of times I've had businesses or organizations use my photos without my permission, and then claim they weren't doing anything wrong because they gave me credit and/or they found it on the internet.  What's worse is that I'm hardly alone in this; nearly every photographer I know has had to deal with copyright infringement at some point.

I should mention that I myself have been guilty of copyright infringement.  What a hypocrite, right?  When I first started making websites in the late 1990s and early 2000s, I had no idea any of these laws existed.  It was my older cousin who first informed me that all images were copyrighted and weren't free to use.  I'm not writing this article from an "I've never done anything wrong," holier-than-thou, point of view.  I think almost everyone who uses the internet has been guilty of infringement, accidental or intentional, at some point.  Since becoming a photographer, I have become and more vigilant to avoid doing it myself.  My goal with this article is to help internet users, especially businesses, learn how to be responsible by demystifying some of the myths about the legalities of sharing images online.  I don't claim to be an expert in how to run a business, but many who know me would probably agree that I have a more thorough than average knowledge of  U.S. copyright law as it pertains to photos.

Please note that this information applies to images shared online, but may also be relevant to other types of intellectual property.  The information supplied in this post applies mainly to U.S. law; laws in other countries may vary.

DISCLAIMER:  I am not a lawyer, and this post should not be used as a substitute for legal advice.  Always consult an attorney before taking any type of legal action.

MYTH:  Photographers must actively copyright their photos by applying for a copyright.
FACT:  The creator of any intellectual property owns the copyright to that content the moment it is created (in the case of a photo, the moment they hit the shutter button).  No further action is needed.  A photographer can register his or her images with the U.S. Copyright Office, which allows him or her the ability to seek more legal damages if infringement occurs, but this is not a prerequisite for owning a copyright (Source).

MYTH:  If an image is posted on the internet, anyone can use it.
FACT:  All images, even those posted in the internet, are subject to copyright, plain and simple.  If you find an image on the internet and you didn't create it, chances are good that you can't legally use it without the photographer's permission (some exceptions will be detailed below). (Source)

MYTH:  If an image shows up in Google images, it is free to use, and should be credited to Google.
FACT:  Google does not own the images it shows in its search results.  It even warns you.  See that little bit of text at the bottom there?  "Images may be subject to copyright."  What it should say is "Images ARE subject to copyright."  Crediting an image to Google is just as inappropriate as attributing a quote you found in a Google search to Google (Source).



MYTH:  Facebook photos are free to use.
FACT:  For some reason people seem to think that Facebook above all other sites is an exception to the copyright rule, while in fact it isn't.  Facebook states directly in its terms of service "You own all of the content and information you post on Facebook."  The user gives Facebook (meaning the owners of Facebook, not the users of Facebook) certain rights to use the images they post (which is common of almost any social network), but ultimately, the user retains the copyright, which means permission must be granted before you can legally use the image.  (Facebook's Terms of Service)

PLEASE NOTE, you do not need permission to click the "Share" button on Facebook to share a photo within Facebook.  This is a feature of Facebook that a user is agreeing to when they share content on Facebook.  If you share Facebook content that is not public (within Facebook, by clicking "Share"), then only the people that the user who uploaded the content has specified to see it will be able to see it, even after you click "Share," so you won't be violating the user's privacy.  This is different than downloading and sharing a photo from Facebook elsewhere on the internet or downloading and then re-uploading a photo to Facebook as a means of sharing it, which is NOT permitted. (Facebook's Terms of Service).

ALSO NOTE, when it comes to sharing a link on Facebook where a thumbnail image from the page is generated, attorneys are somewhat divided on this (based on what I've read online).  Some feel it's fair use, but it's certainly still a gray area.  If the site you're sharing from has a Facebook share button on their site, then as per Facebook's terms of service, you are free to share content from that page to Facebook (using the share button).  Most blogs and news sites have Facebook share buttons, so that is good news for you! (Facebook's Terms of Service)

MYTH:  Public domain means an image was posted publicly on the internet.
FACT:  Public domain means an image does not have a copyright.  This applies to a very select group of images, including those created before the year 1923, those whose creator has died more than 70 years ago, those created before 1989 that do not contain a copyright notice, those created by the U.S. Government, or those that the author expressly chooses to label as public domain, and has made a written declaration that they have done so (this is somewhat rare).  Posting an image online in and of itself does not make it public domain.  (Source)

MYTH:  If the image is not watermarked or does not have a copyright notice, it is not copyrighted.
FACT:  This only applies to images created before 1989 (but even in that case there are some exceptions).  Any subsequent works are already copyrighted.  Most of the images you find online without watermarks were created after 1989.  Adding a watermark or other type of copyright notice is the choice of the photographer, and he or she may do so to discourage copying, or make it easier to find the source if it is copied, but it is not a prerequisite to owning a copyright. (Source)

The Moon Shines Down on the Valley
The copyright notice is just a friendly reminder.

MYTH:  If the image was not taken by a professional photographer, it is not copyrighted.
FACT:  As you read above, all images are copyrighted, no matter the skill level of the photographer.  (Source)

MYTH:  Claiming "I own no rights" and/or "All photos copyright of their respective owners" makes your use of an image legal and protects you from any consequences.
FACT:  This actually just makes it more apparent to your audience that you stole the photo.  This does nothing for you legally except add more liability on your part, because only the owner of the copyright can give you permission to legally use their photo. (Source)

MYTH:  Crediting the owner of the image falls under "fair use."
FACT:  Attribution is great, but it doesn't make it legal.  "Fair use" is a very complicated doctrine that allows for the use of copyrighted work without the author's permission in some very specific circumstances.  Simply crediting the author is not one of them.  I wouldn't suggest claiming fair use on a photo unless you have made yourself very familiar with the doctrine and are confident that there is no other work you could use legally (Source).

MYTH:  Claiming that an image is strictly for entertainment purposes makes it legal and protects you from any consequences.
FACT:  Since only the owner of the copyright can give you permission to legally use their photo, this claim does nothing for you legally.  It's pretty much a red flag that you stole the image.

MYTH:  Claiming that an image is strictly for educational purposes makes it legal and protects you from any consequences.
FACT:  Fair use does make some allowances for educational use, but they are very specific and don't cover every single educational use of a photo.  As I stated above, I wouldn't suggest claiming fair use on a photo unless you have made yourself very familiar with the doctrine and are confident that there is no other work you could use legally (Source).

MYTH:  As long as you are not selling the photo or using it for commercial purposes, it is legal to use.
FACT:  It is far worse to benefit financially from the illegal use of a photo, however, even if you use the photo non-commercially, it is still illegal if you don't have the copyright owner's permission.   This is because, once again, only the owner of the copyright can give you permission to legally use their photo.

MYTH:  As long as you credit the photographer, there should be nothing wrong with using the image.
FACT:  You must know by now what I'm going to say; only the owner of the copyright can give you permission to legally use their photo.  Attribution alone does not make your use of a photo legal.

MYTH:  As long as you don't claim the photo as your own, you can use it legally.
FACT:  Shall I even bother?  Only the owner of the copyright can give you permission to legally use their photo.

MYTH:  It's impossible to keep track of copyright laws, so it's understandable if you make a mistake.
FACT:  Ignorance of the law is no excuse for not following it.  Claiming innocence is not an excuse to fall back on, but it can sometimes mitigate the consequences.  Businesses and organizations in particular have a responsibility to be knowledgeable about these laws before posting images online, especially considering that their use of images is often commercial in nature.

MYTH:  Giving a photographer "exposure" is an adequate exchange for using their image, so there is no reason why any photographer should object to it.
FACT:  Whether a not a photographer wants "exposure" is their decision to make.  Maybe they don't need exposure and would rather be paid.  Maybe the exposure you can give them isn't adequate enough to warrant you using their image for free.  Photographers can tell you that exposure doesn't lead to paying customers nearly as much as the general public tends to think it does.  Maybe the photographer does't want to be associated with your site.  You can't claim to know what their reasoning would be.  It's not a decision for you to make.

MYTH:  Any time you hire a photographer to take photos for you, you own all the rights to those photos.
FACT:  This is only true in work for hire cases, where if an institution hires someone to be part of their staff (on their payroll) and taking photos is within the scope of their job, then the employer owns those photos (unless some other type of agreement has been made through a contract).  If a person or institution hires an independent contractor or freelancer to take photos, the photographer owns the copyright (and thus all rights to the photos) unless some other sort of agreement is made through a contract.  The photographer can (and usually does) grant the client usage rights, but ultimately that is up to the photographer. (Source)

MYTH:  If you or something you own (e.g. a pet or a house) appears in a photo, you own the rights to it.
FACT:  This just seems logical to most people, but it's completely untrue.  A photographer must obtain a model release or a property release from a person or property owner before he or she can commercially use a photo with a person or private property in it, but ultimately the photographer owns the copyright and thus all rights to the photo they took. (Source)

MYTH:  If you try really hard to track down the owner to a photograph but have no luck, you can use it.
FACT:  If you can't track down the owner to a photograph, you can't use it, because you'll be infringing on someone's copyright.

MYTH:  If you post a message saying that anyone who wants their image taken down can contact you, you can use an image.
FACT:  You can't use a copyrighted image without obtaining permission beforehand.  It is unrealistic and inappropriate to expect the photographer to come to YOU if they want their copyrighted photo (that you shouldn't have been using in the first place) removed.

MYTH:  As long as you take an image down when requested by the copyright owner, there won't be any consequences.
FACT:  Many people would like to believe this, and although that's often the case, it's not always true.  Here are just 2 examples (here and here) where infringers were required to pay a fine for using photos (in one case, non-commercially) without permission.

MYTH:  People share images without permission and/or credit all the time, so it couldn't possibly be illegal.
FACT:  This is just an excuse and holds no truth.  When has something ever been okay just because "everybody does it?"

MYTH:  Facebook wouldn't let me upload a photo if it were illegal.
FACT:  Facebook expressly states in its terms of service that the user is expected to comply with copyright law (and in fact you are liable and not them if legal action were brought against you).  If you do not comply with copyright law, they can suspend your account.  The folks at Facebook do not have  time to comb through every user's account for infringement.  Most suspensions come from reports from other users, and Facebook will shutter your account if multiple infringement claims are brought against you. (Source, Source)

MYTH:  If you modify a photo, you own the rights to it because it contains your work.
FACT:  Modifying a photo does not grant you any ownership of the photo.  Only the copyright holder can determine who has permission to make derivative works.  Modifying a photo without the photographer's consent is even worse than just using the image in its original form, because you are presenting it in a way that the photographer did not intend it to be shown.  (Source)

MYTH:  The odds are slim that a photographer will be able to track down your use of their image on their site.  The internet's too big!
FACT:  With reverse image search engines like TinEye and photographers looking out for each other and reporting infringement to their colleagues, it is much easier than you might think for a copyright owner to track down infringement.

4 Ways to Use Images Legally:

1.  Use Creative Commons or Public Domain images.  Some photographers apply Creative Commons licenses to their photos, which allow users to user their work without permission under certain circumstances.  Flickr and WikiMedia Commons are two great sources for these types of photos.  Note, however that NOT ALL photos on Flickr and WikiMedia are Creative Commons or Public Domain.  You must look at the copyright information for each individual image to see if it falls into one of those categories.  Be sure you understand Creative Commons licenses before you start using photos, so you don't end up infringing.

2.  License photos from a stock agency or from the photographer.  If you like a photo enough, then look into whether or not it can be licensed.

3.  Seek permission from the photographer to use the photo.  A lot of photographers do allow their photos to be used online, but you must ask permission first.

4.  Create your own photo.  Don't have the money to license a photo?  Can't find an appropriate photo to use legally?  Maybe it's time to get out there and create your own photo!


Conclusion
Hopefully by reading this article, you have a more thorough understanding of copyright law regarding sharing images on the internet.  Many people feel that if an image is shared online, anyone should be able to use it. While you're entitled to feel that way, that in no way makes an unauthorized use of an image legally justifiable. With so many photos available online via Creative Commons and low-fee stock agencies, there's no excuse not to go the legal route. If you found this post useful, please consider sharing it. While there will always be dishonest people who choose to disregard the law, we can still cut down on copyright infringement online by better informing those who want to obey the law.


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