Are You Violating Copyright Laws by Using Those Images?

Whether you are an individual posting or sharing photos, GIFs, or video on social media or a business searching for images to use for your email marketing campaigns, website or print advertisements, it is easy to think that the images you find online are fair game to use. However, the truth is that if you did not create the image, take the photo, shoot the video yourself, or pay to use it, you could unwittingly be infringing on the copyright of the creator. 

In the United States, as soon as a work –an illustration, image, photograph, video, etc.—is created, it is automatically protected by copyright laws, and the creator has the exclusive right to use, display, reproduce, distribute, sell, or to alter or create a modified version (called a “derivative work”) of it. The creator is the only one who can grant permission for others to use it. It is up to the creator whether to grant that permission, and, if granted, what permission to grant.

You can get yourself into some expensive trouble if you are not careful about where and how you find your images and how you use them. You could even be sued for copyright infringement if the creator properly registered the work with the United States Copyright Office. 

One of the best ways to ensure that you are not in violation of copyright laws is to purchase an image and its copyright. You can do so by purchasing an image and its copyright directly from the creator or from another authorized source.

If you hire a photographer, illustrator, videographer, or graphic artist to create images, videos, or photographs for your use, ensure that your agreement with the creator is clear that the works that are created for you (and paid for by you) are considered “works for hire.” Specifically, this means that the creator transfers all rights and ownership in the work to you, and you can do what you please with them. 

Another way to get permission to use an image is to obtain a license. There are several public copyright licenses that enable the use, display, and/or distribution of a work that would otherwise be copyrighted. One of the most popular and well-known is the Creative Commons (CC) license. Creators use CC licenses when they want to give others the right to use or share their images, or to create a derivative work based on their image.

Creative Commons licenses differ based upon the conditions placed on how the work can be used. If you find a work with a CC license, it is imperative that you determine which type of license is being offered, what permissions are being granted through the license, and what conditions are attached to the license. Failure to abide by the conditions in the license may open you up to a copyright infringement suit even if you have paid for the license.

The CCO license is the least restrictive license available through Creative Commons. This type of license indicates images that are within the public domain can be used by others fully, for any purpose, anywhere, without attribution. Essentially, granting a CC0 license means that the creator is waiving their legal rights to the image and there are no conditions on its use.

Most Creative Commons licenses require attribution. Essentially, this means that you can use the image, but you must give credit to the original creator, and each creator may determine what information must be included and in what format. Attribution of images will usually include any copyright notice from the creator, the creator’s name, and may require a link to the creator if the image is published online. It may also include the title or name of the work, or a citation to the specific CC license being granted.

Share-alike is another condition that might be included in a Creative Commons license. This condition governs how derivative works can be distributed. The share-alike condition requires that licensees distribute derivative works under a license which is the same or less restrictive than the license attached to the original work. In other words, if you create a derivative work, you cannot make its use more restrictive than the original image.

Some creators are happy to share their work, but do not want others to profit from it. This is where the non-commercial condition is used. Under this condition, you can copy, use, display, distribute and make derivative works, but only for non-commercial purposes. Pay careful attention to how “non-commercial” is defined in the license, as this can be a gray area.

Finally, the no derivative works condition permits copying, distributing, or displaying the image, but prohibits the creation of any derivative or modified works based on the original image.

Fair use is an exception to copyright protection that can be used as a defense in a copyright infringement suit. The fair use doctrine allows non-permitted uses of copyrighted works in limited circumstances—usually when the user is commenting on, criticizing, or making a parody of the copyrighted work. When determining whether use of a copyrighted image falls within fair use, the law looks at four factors:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

Whether the use of an image is considered a fair use under United States Copyright laws is based on the individual circumstances in each case and often requires legal analysis. If you have some questions or concerns about whether your use of others’ images is appropriate and/or whether others’ use of your images is appropriate, you should consult with a copyright lawyer.