How To Use Images Online Without Getting Into Trouble

Where do you get the pictures you use online?

Like most people, do you simply do a Google Search to find something that matches what you’re looking for?  Another really common practice is to just use clipart.

Unfortunately, just because you can find it online doesn’t mean it’s free to use.

There is a growing trend for artists and image copyright holders to send out letters of demand to people using their images.  If you read forums you’ll find that there are people who think this is a scam and unfair. To give you some context, if artists gave away all of their work for free, they would starve and there would be a lot less high quality images for you to use. Copyright law came about for the purpose of protecting the livelihood of creative people and to make it worthwhile for them to continue to produce creative works for the rest of us to use or appreciate and enjoy.

Claims for payment for use of copyright images are not often scams.

When a copyright owner starts to lose income from their work, they have the right to chase up people who are breaching their rights. Copyright is a bundle of rights rather than just one thing and can be breached in a variety of ways. Copying, distributing, republishing, changing, adapting and translating can all be breaches of copyright. If you are in breach, there is a chance that you will receive a letter of demand.

Letters of demand vary depending upon whether they are a form letter, such as those sent out by Dun & Bradstreet on behalf of Getty’s images, or a letter specifically sent out by a legal firm on behalf of their client. We’ve worked with all sorts.

A letter of demand for breach of copyright will usually cover the following:

·         it has been found that you are using the image on your website “for online promotional purposes”

·         the writer is the artist or is authorised to represent the artist or distributor

·         the artist or distributor holds copyright in the work

·         the writer has been unable to verify that you have permission or are licenced to use the image

·         you are requested to immediately remove the image

·         you are asked to pay a licence fee

Licence fees can vary depending upon the artist and how you use the image, a claim for $15,000 might not be unreasonable.

Licences fees can vary. The highest demand I have come across so far is $15,000 from a photographer in Hawaii who is prepared to commence legal action to protect his work, and has done so on at least nine occasions. The amount claimed may or may not be enforceable. You can’t assume that the image is only worth a few dollars just because you can purchase stock images for a few dollars per image. The artist, the type of image and the way you use it can all influence the value of the image and what you might be asked to pay.

Technology now makes it easy to find images being used without permission online.

With technology like TinEye.com and Images.Google.com it is now very easy to find copies of images on the internet. Try it with a picture of yourself or a holiday snap you uploaded to Facebook. You might be surprised at where it shows up on the internet.

So how do you use images online without getting into trouble?

You need to own copyright in the image, or have a licence to use the image and be able to prove it.

Owning Copyright

Copyright doesn’t require registration, you own copyright in a creative work as soon as you create it. That’s the point, you need to create it (paint it, take the photo, sketch the stick figure, write the note) to own copyright.

If you’ve got employees in your business creating work for the business, then the business owns the copyright rather than the employee. If you are outsourcing or using contractors, your agreement with them needs to spell out that copyright belongs to you, otherwise it belongs to them.

So, you own copyright if:

·         you created it

·         your employee created it

·         you contracted someone to create it and the agreement said you own copyright

You can also buy (get a transfer of) copyright in a creative work. This has to be done in writing.

Copyright Licence

A copyright licence is a permission to use a creative work. When you buy a stock image, you get a non-exclusive licence to use that image in accordance with the terms of the licence. The terms of the licence will vary and you should check what it says before you buy the image. For example, I use dollarphotoclub.com for images. Dollarphotoclub has a variety of licences:

·         draft – free to download and just for trying things out before publication

·         standard royalty-free license – you can use it in a long list of ways as an illustration for what you are doing, but not in a way that would be re-selling the image itself

·         extended royalty-free license – includes all the standard terms plus the right to print it out up to 500,000 times and also put it on things like mugs and t-shirts

You will be able to find the terms for use of an image in all reputable stock image re-sellers.

You might have also heard about Creative Commons licences. Creative Commons help people to decide what they are happy for others to do with their images and attach a licence to their work. Unsplash.com is an example of a website where artists submit their photographs for the purpose of giving them away.

Whenever you download an image, keep a record of where you got it and the permission attached to that image. Stock resellers make this easy by giving you a history of downloads in your account. We recommend 0backing up a copy of that list from time to time.

5 Tips for protecting your business:

·         don’t let web designers find images for you, always make sure you have the licence

·         if you did let a web designer do your images, chase up the licences or replace the images

·         keep a copy of all your licences in one place, date referenced, so they are easy to find

·         create your own photos and images if you can

If you get a letter of demand, feel free to contact Onyx Online Law for help. You may not have to pay a cent. Whatever you do, don’t panic and don’t do what one of our client’s did and admit that you have a software program that just runs around the internet pinching pretty pictures! Please talk to us first!

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About the author

Jeanette Jifkins is the founder and Principal of Onyx Online Law,  an Australian based law firm with the focus of supporting and protecting businesses with an online presence.