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Using Images from the Web Legally

This composite Creative Commons logo is a mosaic of 2500 flickr images licensed under a Creative Commons license.  Photo by qthomasbower on Flickr, reproduced under a Creative Commons License (Attribution and Share Alike).

This composite Creative Commons logo is a mosaic of 2500 flickr images licensed under a Creative Commons license. Photo by qthomasbower on Flickr.
Reproduced under a Creative Commons, Attribution-Share Alike License .

Scenario 1:  You are preparing a presentation for a group of potential clients.  To jazz up your slides you search clip art available on the web and find images that would perfectly enhance the point you are trying to make.  So you extract the images from the web and embed them in your presentation.

Scenario 2:  You just completed your new blog piece, and to attract the attention of readers you are looking for a snazzy image to complement your article.  After searching the web, you find the ideal image, capture it, and add it to your blog posting.

Are these acts legal?

Many people correlate the internet to the “public domain” and surmise that since the image is publicly available (and often contains no copyright notice), it is not subject to any intellectual property rights, and therefore the images posted on the web are free for anyone to copy and use.  However, this is not necessarily the case, and should you misuse images posted on the web you may be infringing someone’s copyright.

Copyright is a legal concept granting creators of original works exclusive rights to reproduce, display, perform, distribute copies or prepare derivative works based upon the copyrighted material (subject to some important rights granted to the public). Since copyrights are automatically granted to the authors of creative works, and last an extremely long time, an image found online may still be protected under a copyright even if it lacks a copyright notice or information about the author. If you violate someone’s copyright, you will at a minimum likely be asked to stop the infringing activity, and furthermore, you could be subject to a civil lawsuit that could include statutory damages up to $150,000 per image.

This article provides some general guidelines to follow to avoid copyright infringement.

1.  Use your own images, but when you can’t, seek permission to use an image

Obviously the best way to avoid copyright infringement is to use your own images.  However, when that is not possible, the next best thing to do is seek out permission to use the copyright-protected image.  When asking for permission to use the image, first make sure that the person you are asking is actually the owner of the copyright.  Next, carefully read and understand the granted permission so that you know where and how you can use the image.  For example, does the owner request that you credit them?  Be sure to adhere to any limitations attached to the permission.  Also, don’t be surprised if the owner requests that you pay for use of the image.  People creating the images that would spice up your blog or presentation are generating something of value, and they may want you to compensate them for their efforts.

2.  Understand “fair use” and apply it

Under certain circumstances, it may be possible to use a copyrighted image without permission if your use would constitute a “fair use” under Section 107 of the Copyright Act.  Under the statute, an image is used “fairly” when the image is being used for the purpose of criticism, commentary, news-reporting, teaching, scholarship or research.  Should your use of an image ever be challenged, courts will consider the following factors in determining if your use of the image was fair or not:

(1) What was the purpose and character of the use?  Was it commercial or for non-profit educational reasons?   Is your use transformative of the original use (i.e., are you using the original for an entirely new purpose or are you creating a new work from the original)?

(2) The nature of the copyrighted work?  Is it fiction or non-fiction?

(3) How much of the work did you copy?  The court will look to see the amount of the material that was used (copied) and compare it to the copyrighted work as a whole.  Did you use too much?

(4) What was the effect of the use on the potential market for the value of the copyrighted material?  Did your use drive down the price of the work?

So how would these factors apply to scenario 2 above? While no one factor is determinative, if you use a verbatim copy of a creative image for the same purpose for which it was originally created, to promote your for-profit business, it may be safer to seek permission than to rely on the fair use doctrine.

3.  Take advantage of Creative Commons  licenses and public domain images

Creative Commons is a nonprofit organization that enables the sharing and use of images uploaded by photographers.  If the image you are interested in using is offered under a Creative Commons license, you may be able to use the image without having to contact the creator or pay for such use. For more information see http://creativecommons.org.  It is important that you understand the terms of the specific Creative Commons license covering the image you are using.  Some licenses require you attribute the creator and/or prevent you from modifying the image or making commercial uses of the image.

Creative Commons licenses are just one of many ways that creators of copyrighted work can make their works readily available to the public.  For example, some works have been released into the public domain and are therefore available even without a license (e.g., www.public-domain-image.com).

4.  Purchase stock photos

If all else fails, you can always purchase or license the images you are interested in.  If you need an image quickly, you can license the use of a stock image (for a price) at sites such as http://www.istockphoto.com, www.bigstock.com, www.shutterstock.com, or www.123rf.com.  Generally speaking, the price of the image increases with the quality of the image.

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