Recently, one of my clients asked me this question about using images online. He made me realize that many business owners and entrepreneurs may struggle with this problem. If you have ever wondered about the use of images online and how that use affects copyright law, then you should take a look at my answer. Better to be polite (and safe) than ignorant (and potentially sorry)!
Ask:
Many people are confused about the use of images in ezines, products, or on your website that are captured from the web. I buy most of my images from iStock or other sources, but what are the clear rules?
I know that Constant Contact offers free images as well as clip art from Microsoft. And when writing about a product or resource (basically promoting it), is it safe to use an image of the product or company logo? I have done this before.
You can get in trouble using images, right? Even if you don’t see a “copyright” on them? I guess you can ask permission and cite the source of the image. Could you give advice to all those who are building their business on this? Thanks.
Answer:
Big question! I have a colleague who just got into trouble with this exact scenario for using an image without permission for ezine that was copyrighted by a photographer.
Copyright protection begins the moment an original work is created and lasts for the life of the creator for 70 years. Copyright protection extends to literature, music, plays, choreography, images, graphics, sculpture, architecture, motion pictures, audiovisuals, and recordings. So you are correct that the images and photos are included and have copyright protection.
Copyright infringement is using someone else’s creative work without permission or compensation, if applicable. So what we’re dealing with here is a potential copyright infringement of someone else’s photo or image. (It can also be trademark infringement if the image or logo is trademarked.)
The owner of the copyrighted material controls whether others can reproduce the work, prepare derivative works, distribute copies, or display it. Using it without permission, even if you give credit to the creator, is not acceptable. Neither is copying the original work of others that does not bear the copyright symbol.
However, there are exceptions. One is “public domain”. But don’t misunderstand the term “public domain”. Just because it’s on the internet doesn’t mean it’s in the public domain! Once a copyright expires, it goes into the public domain. Public domain includes all works that are no longer protected or never were, including works created before 1923 and works created between 1923 and 1963 for which copyright registrations were not renewed. Works created after 1989 are presumptively protected, and all government material such as statutes and laws.
There is also a Fair Use Exception to Copyright Infringement that allows limited use of copyrighted material without obtaining the permission of the rights holder. It is permitted for literary criticism, commentary, news, reporting, teaching, scholarship, and research. Courts use a four-factor balancing test to determine whether the fair use exception applies: 1) purpose and character of the use, 2) nature of the use, 3) amount and substance of the work used, and 4) effect on the labor market value. Some people believe that there is also a fifth factor that depends on the type of offender (non-profit or for-profit) and their intentions and background (a repeat offender or an unwitting and unintentional offender).
The easiest way to avoid copyright infringement is to only use images from sources that specifically grant permission, some of which you listed, such as iStock. There is also a nonprofit organization called Creative Commons that grants copyright permissions through a tiered approach that ranges from selective protection to unlimited permission granting. You can get more information at http://www.creativecommons.org. Be sure to look up a Creative Commons license on a website to see if the owner has specified what rights they retain and what rights they are willing to give up.
Another way to avoid copyright infringement is to request the use of the work. Sending a simple email request to use an image takes just a few minutes and can save you a lot of hassle (and possible legal fees!) in the long run. Reach out to people online on sites like Flickr. Let them know you’d like to use one of their images, which one, for what purpose, and offer to credit them. Also, see Stock Market and Wiki Commons. Read the restrictions and rights. Artists will usually list if a photo can be used, for what purpose, and what type of credit should be given.
Despite all of the above, if you’re using an official image of a product to promote it, it’s generally assumed that the owner of that product is happy to have you assist them in their marketing efforts. It has become common practice to use an image of a product when reviewing it, sharing it with your readers, and promoting it to get people to buy it. Most companies that put a picture of their products on the internet get excited if you take that picture and tell the world about that product. It’s like having a global sales team! In fact, if you are an affiliate of a product, there is an implied agreement that you can use the images of that product to fully promote it as an affiliate. I often review products on my blog, and the companies I do it for are happy to provide me with images.
The bottom line: When in doubt, use images that specifically grant permission. If you’re not sure, don’t use the image! Ask permission first or find a different image that is clearly allowed for use.