We’ve all heard the old saying, “a picture is worth a thousand words,” but when that picture is protected by copyright, the picture could be worth $25,000 instead.
As the popularity of social media grows, so does the amount of content that circulates through our news feed. Users can post or share their own or anyone else’s content on social media sites, including copyrighted content. While some uses of copyrighted content on social media sites may be considered “fair use,” understanding the line between fair use and infringement is essential to avoiding legal risks.
How many times have you been in a rush to complete a social media post (I know, the pressures of publishing to social media these days, right?), a marketing piece, or adding images to your website or blog, then find yourself in the image section of Google looking at all of the awesome *shiny* photos? Probably more often than you’d like to admit.
Did you know that by using an image pulled directly from Google, you are opening yourself up to the possibility of a fine(s) up to $25,000, PLUS attorneys fees an damages? Wowzers! That’s intense!
So, what exactly is copyright?
Copyright laws were established long before digital communications were ever imagined. They weren’t necessarily created to allow the author the right to deny their work to other people, but rather to encourage content creation.
Copyright is a federal law of the United States that protects original works of authorship. A work of authorship includes literary, written, dramatic, artistic, musical and certain other types of works.
Copyright attaches as soon as the original work is created, and applies to both published and unpublished works. Copyright also is an automatic right and does not require the author to file special paperwork, as is the case for trademark and patent. Registration is required to enforce the rights, but as a matter of right, an author is not required to register anything to get the right to use the “circle c,” showing the work is copyrighted.
We all know that as content creators in the digital age, the value of using an attention grabbing photo to grab reader’s attention is enormous. Using the correct image can definitely take a post from drab to fab very quickly. It can also help tell a story that words alone can’t… which is why you are probably reading this post about how to safely use images from the Internet.
So, what is fair use?
Fair use is not the same as FREE use. Fair use is a legal exception to the exclusive rights an owner has for his or her copyrighted work.
The purpose of the Fair Use Doctrine is to allow for limited and reasonable uses as long as the use does not interfere with owners’ rights or impede their right to do with the work as they wish.
Here are 5 things to consider before using an image from Google (or anywhere online really):
- DO YOU UNDERSTAND THE TERM “FAIR USE”? Just because you provide attribution and/or a link back to the original doesn’t mean you’re free and clear. Fair use has nothing to do with attribution. That’s an issue related to plagiarism, which is different from copyright. Fair use basically means you’re allowed to infringe on someone’s copyright and they can’t do anything about it. If your use is covered by fair use, you don’t have to provide attribution anyway (although it would be nice).
- WHY ARE YOU USING THE IMAGE? If it is “…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…” you’re on the right track. If you’re just using the image to pretty up a post, then think twice; or better yet, get permission or buy a stock image.
- HAVE YOU ALTERED THE IMAGE AT ALL? If the new work which incorporates the copyrighted image is a “transformative work”—what you created no longer resembles the original—there is a greater likelihood of finding an exception to copyright infringement. Are you taking an image and incorporating it into an infographic? Is the image now part of a video used for one of the reasons set forth in the Copyright Act?
- HOW MUCH OF THE IMAGE ARE YOU ACTUALLY USING? If you’re using a thumbnail and linking to the original location, there is greater likelihood of finding fair use than if you just post the original image. If you’re doing a post about facial features and are just using a portion of the face from an image, you stand a better chance of arguing fair use than if you used the entire image.
- ARE YOU WILLING TO RISK YOUR SITE BEING TAKEN DOWN, GETTING A CEASE AND DESIST LETTER, OR BEING SUED? The Digital Millennium Copyright Act (DMCA) provides very powerful options for a copyright owner to protect his or her works in the digital space. By hitting “publish,” you may be opening a can of worms.
When it comes to art, whether it be art, music, video, etc. always assume that it’s copyrighted. Don’t use it without permission. Photographers, videographers, and graphics designers often make a living from selling/licensing their work. Copyright laws and fair use laws are put into place to ensure that even artists get their fair share of the entrepreneurship pie. Although the odds of an average blogger/business being sued for copyright infringement relating to an image is small, bear in mind that you may be the proverbial “straw that broke the camel’s back.” And if you think the photo might be covered under fair use, be sure it clearly fits into one of the listed protected purposes (#2).
For years and years, copyright fair use has been fought over when it comes to using words and images in print publications. The Internet, though, is still in its early stages when it comes to the rules and regulations that regarding fair use. Without extremely clear rules set, individually, we are left to decipher the law (that was written way before digital communication was even thought of).
If you have any doubt that the photo might not fit fair use 100%, seek legal counsel if you really want to use the photo. Although fair use may be a slight exception to using copyrighted images, the odds are you will probably end up in a discussion about the photos use or possibly find your site taken down by your host if the copyright holder disagrees. Unfortunately, there are no significant cases that establish hard-and-fast rules when it comes to fair use and images used on the internet. So, when in doubt, leave it out!
The best way to avoid copyright infringement when it comes to digital marketing is to simply check the social media network’s terms and conditions. More often times than not, the site’s Terms of Service will state that any content published will provide all other users a license to use that content on that specific site. So, if that’s the case, you are good to go… if you are simply re-sharing the post.
To play it safe, I like to use the practice of posting a link to the original source and providing my own image (purchased stock photography). This not only allows me to share the content I want, but it also gives automatic attribution to the author of the content. This practice often times will prevent the likelihood of receiving a complaint and would more than likely support a fair use defense in a court of law.
Who would have thought that sharing would be so hard?
(Source: Social Media Examiner, Lexology)