Google and other image search engines are a free and easy way to get visual information. Search engines are not the best way to find an image for your blog. Your copy of an online search image may not cause trouble if used in an off-line collage or physical artwork. Use of that same image online, however, carries enormous risk. Unfortunately, search engine results obscure image ownership information. Images bounce around the internet as they are screen-captured, downloaded from social media, mixed with other material, and shared by users. The owner of the website where you found the image likely does not own the image or provide permission from subjects appearing in the image.
Nevertheless, the photographer and each party or location depicted in the photo has rights in the image. Obtaining each of their permissions to use the image for your particular personal, commercial, or professional use is required to avoid liability. Although most images online are of unknown provenance, people and businesses continue to use online search images without permission. Several clients this year received demand letters relating to the use of online images without permission. Here are a few reasons to avoid risk by not right-clicking an image:
- Photo Trolls are Copyright Owners with Registered Claims to Copyright. While true, certain copyright owners are very aggressive about policing their rights. They use electronic infringement detection tools to identify potential infringement of their copyrights then demand several thousand dollars per image to settle. Ignore their demand letters at your peril.The threatening letters are backed by successful copyright infringement lawsuits, often the copyright owners win large judgments by default when infringers do not respond. Here’s how copyright in online images work. The photographer of an image owns the copyright to the image. Copyright laws provide the copyright owner with the exclusive rights to reproduce, distribute, adapt, and display the image online. If the photographer timely registers a claim of copyright in the image with the Copyright Office, the photographer has the right to seek statutory damages for every unauthorized use of the image. Commercial use is not required to find copyright infringement but it may increase the amount of damages. Statutory damages are determined by the court and can run from $750 to $30,000 per infringement for non-willful infringement. If the infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000 per infringement. Willful infringement may be easily proven to a court if the defendant removed the copyright notice before posting the image.
- Your unauthorized use of an image depicting people as the subject could be “creepy” and that could cost you. Subject matter in an image may violate a third party’s rights of privacy, including the right to be awarded damages for invasion of privacy, publication of private information, casting a false light (a defamation-like harm), and misappropriation of a subject’s likeness for a commercial purpose. Last month, a family was shocked to learn that their family photo was used in a political campaign mailer. The photo appeared next to a constituent’s letter thanking the former state representative for saving the constituent’s house from foreclosure. The family in the photo had to explain to numerous friends and neighbors that their home was not in foreclosure. In some situations, the family may have been able to claim the campaign mailer cast a false light if the false impression that the home was in foreclosure caused a financial injury. Subjects of concern in online images also include images of locations. Location images, such as private properties photographed and posted online by trespassers may invade the privacy of the person who owned the property.
- There is no safe harbor from liability for using images without consent. The Digital Millienium Copyright Act provides a safe harbor from copyright infringement for online service providers (OSP) if Facebook if the OSP did not post the post the content itself and met other safe harbor requirements. This is to protect the OSP from liability for users’ copyright infringement. The user who infringes a copyright is never protected from liability unless it is a fair use but it is expensive to prove a fair use in court. The Communications Decency Act provides a similar safe harborto protect OSP’s from liability for defamatory communications (including invasions of privacy) provided by users of their platform; but again the safe harbor does not protect users posting such libelous messages.
- Take a tip from professional photographers – don’t rely on fair use. Get permission! Fair use may cover some uses of anonymous images online, but proving fair use most often requires a determination by a court. Insead of crossing their fingers, professional photographers obtain model releases from human subjects so that they are not liable for any later percieved violation of copyright, rights of privacy, defamation and rights of publicity. And if a photographer is shooting pictures of copyright-protected materials such as public art and murals, she might obtain a location release specifically for the artworks or a non-exclusive license to use the copyright in the public art to create the image.
- Licensed images are abundant, inexpensive and eliminate unknown risks. Most infringement cases do not end up in court because legal fees for infringment cases can run hundreds of thousands of dollars. A good reason not to use an unlicensed image is that merely settling a dispute with the copyright owner or other injured party outside of court usually requires legal counsel. Legal counsel is invaluable when the lawyer understands the law and can reduce settlement amounts but expect to pay a lawyer for their time settling your case. Typical licensed images, on the other hand, are around $35 for a broad range of online uses.
Pro tip: If there is an identifiable person in a stock image that you wish to use, check the license agreement to ensure the stock image company obtained consent from the model.
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