Copyright Fair Use and How it Works for Online Images

social media viewpointsYou’ve heard the adage that a picture is worth a thousand words, but when that picture is protected by copyright, the picture is only worth three words: cease and desist.

OK, that’s kind of a lawyer joke. But it illustrates how protective people are about finding their images used online without permission.

Copyright laws were established not to give the author the right to deny their work to other people, but instead to encourage its creation.

Article I, Section 8, clause 8, of the United States Constitution states the purpose of copyright laws is “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

It’s a delicate balance between the rights of the creator and the public’s interest. When in conflict, the balance tips more heavily toward the public’s interest, which is often contrary to what the creator believes to be fair or just.

This article will cover exactly what copyright is and what it covers.

And then we’ll look at the concept of fair use as it pertains to using images online. The goal here is to better understand how to use images others create in a way that is both respectful of the author’s ownership rights and allows others to use it.

What Is Copyright?

copyright symbol

Copyright attaches at the time of creation and there is no requirement to use the “circle c”. Image source: renjith krishnan / FreeDigitalPhotos.net

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Copyright attaches as soon as the original work is created, and applies to both published and unpublished works. As soon as you type words, click the shutter on your camera (or, for many of you, hit the home button on your iPhone), apply paint to canvas or paper or lay down tracks for your next hit, you’ve got a copyright (with some exceptions).

Copyright 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.

One of the many terrific things about copyright is that it comes with a host of exclusive rights that allow the owner to do or authorize a number of things and exercise substantial control over his or her work. The copyright owner has the right to do four things (called exclusive rights):

  1. Reproduce the copyrighted work;
  2. Display the copyrighted work publicly;
  3.  Prepare derivative works based on the copyrighted work; and
  4. Distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

Source: 17 USC Section 106.

Copyright does not apply to works in the public domain; words, names, slogans or short phrases (those may have protection in trademark law); blank forms; works that are not original; and government works. This is important to know because if the work is not protected by copyright, then there is no concern whether the Fair Use Doctrine will apply to allow you to use the work.

As online content creators, curators and managers, you know the value of using images to get the reader’s attention, add a visual component to commentary, illustrate using an infographic or any of a host of benefits. 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.

But unless you’re a photographer showcasing your own work, chances are you’ll need to use work created and owned by someone else. There are plenty of sources. While the general rule is that you can’t use a copyrighted work without express authorization from the owner, there is one significant legal construct that allows millions of people every day to see and share images online.

Please keep in mind that stock photo services, creative commons licenses and public domain repositories of images are not subject to fair use due to the rights they carry.

Stock photo services require you to pay for a license, creative commons licenses confer the right to use an image under certain circumstances and public domain images are not subject to copyright in the first place.

What About 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.

It has little to do with what we may think is fair, and everything to do with keeping the balance tipped in favor of the public interest. It’s a delicate balance, mind you, but one that often leaves the copyright owner wanting to scream.

balance

Fair Use is a balancing between protecting the creator and promoting the interests of the public. Image: cjansuebsri / FreeDigitalPhotos.net

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.

Since this discussion will only pertain to use of images online, I will use examples specific to this.

A classic example of fair use of an image to use online is product reviews. If you want to review a book, a new piece of technology, a food product or whatever widget, you’ll likely want to include a photo. But not some washed-out, overexposed, shadowy, laundry in the background kind of photo that you’d take.

So you head to the manufacturer’s website and right-click that image and save it to upload to your site. A photo will not substitute for the actual product, so the owner’s rights should be very minimally affected. Therefore, your right to use the copyrighted image would likely be permitted under fair use.*

Fair use is in place for the greater good, to allow copyrighted works to be used without permission for the benefit of the public. Imagine not being able to use images of a dead dictator to tell the story of how he died. Or not being able to talk about fashion without showing the outfit you’re referring to.

However, there are limits and only a court has the final decision-making ability. Section 107 of the Copyright Act states:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.

Source: 17 USC Section 107.

All four factors are used in determining fair use, with the first (the purpose and character of the use) being the most important the court will examine. When it comes to photographs, copyright law has a long-standing deference to permit a photographer control over the first time an image is made public. In this discussion, we’ll assume that you’re not hacking computer systems or digging through rubbish bins looking for non-public images.

One of the issues with photos is that using just part of it is, well, a bit ridiculous. This is the third  factor courts will look at (how much of the work is used); however, it is often a very significant element of whether fair use exists.

Unlike the written or spoken word, where excerpting a portion to illustrate is possible, with images it is usually the whole that is necessary. A partial photo, unless you’re doing some kind of guessing game, does not portray the level of professionalism you’re likely going for.

Same with using a very low-resolution option. Not only does a low-res image look bad on your site, the image creator (whether photographer or designer) probably doesn’t want a bad-quality image circulated, as it could impact his or her reputation.

5 Things to Think About Before Using Copyrighted Images

list of 5

5 questions to consider when using copyrighted images online. Image source: Rawich / FreeDigitalPhotos.net

So you’re likely thinking this is insane and who has that much time on their hands to figure out all of this just for an image on a blog? In reality, though, answer question 1 of the 4-part fair use test and you’re likely to get a very good sense of whether you’ll have a leg to stand on if challenged.

#1: 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).

#2: 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.

#3: Have you transformed the image? 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?

#4: How much of the image are you 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.

#5: Are you willing to risk your site being taken down, getting a cease and desist/bill/DMCA 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.

In Summary

When it comes to photos, when in doubt, assume it’s subject to copyright and don’t use it without the appropriate permission. What it comes down to is that if you need to use another person’s image, make sure it fits clearly into one of the protected purposes or seek legal counsel if there is a significant investment of money or time in your project.

Fair use may be an exception allowing you to use copyrighted images, but chances are you’ll be in for a discussion 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.

However, photographers and graphic artists often make a living from selling or licensing their work and if we all just poached what we wanted, we’d be circumventing not only the law but also interfering with their right to control how they distribute their images.

Copyright fair use has been fought over when it comes to using words and images in print publications. The Internet, though, is still very much in its infancy when it comes to fair use guidance.

Without bright line rules, we’re each left to interpret laws that were written long before digital communication was ever imagined and did not contemplate the ease of sharing that exists today. While it may be a remote possibility that the average blogger will be sued for copyright infringement relating to an image, bear in mind that you may be the proverbial “straw that broke the camel’s back.”

If you’re considering taking images from large agencies, they have legal teams that do nothing but look for infringing uses. There are inexpensive ways to search for images online, even if you change the file name. And if you’re thinking you’ll just crop the image so you can’t see the copyright notice or other identifying information, think twice about that because the penalty for doing so is very stiff— up to $25,000, plus attorney fees and damages.

There are many resources for free images, whether public domain, licensed creative commons or inexpensive stock images, so you really shouldn’t need to use copyright-protected works for beautifying your site, creating that cool presentation or making a video. But if you really have to have that image, ask first. You’d be surprised at how many people would gladly grant permission for use of their images.

Fair use doesn’t mean fair game, but it’s there to allow for uses that will benefit society and the public good. Don’t be afraid to use images. Use this information to make good decisions and you’re likely to be just fine. Always, though, if in doubt leave it out (or get permission or ask a lawyer).

What do you think? Leave your questions and comments in the box below.

Disclosure: While Sara Hawkins is an attorney, this article is for informational purposes only and is not to be considered legal advice.
*Not intended to be legal advice.

Image source FreeDigitalPhotos.net: renjith krishnan, cjansuebsri & Rawich

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About the Author, Sara Hawkins

Sara Hawkins is a lawyer, blogger and doer. No longer happy waiting for someday to find her, she's finding ways to make her somedays happen. Other posts by »




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  • Bill Corbett

    Thank you for this post, it was very informative.  I would love to hear your advice on the use of video clips embedded in Power Point presentations.

  • LucidGal

    How does reposting/retweeting a link to an article, which often brings a photo with it, relate here?  Does introducing a repost of an online article constitute “commentary?” 

  • http://www.IfSimply.com/ Keith Griffis

    Sara,
    In order to find royalty free images I recommend Acobox http://acobox.com/ or a similar service. The added bonus is that you can hotline your images (ie paste a bit of code that pulls the image from their server) and it saves space on your site. The downside is that you don’t have complete control ove the image name which can contribute to your Seo rankings.

    Anyone else know of places to find royalty free images for blogs without a fee for membership or download?

    Happy Thanksgiving,
    Keith
    http://www.SimpleMediaMarketing.com

  • nouf

    Tnank you for all this infoematiom. It very useful for me.

  • Jan Wong

    Hi there, I happen to have read through Twitter’s TOS and it says: 
    “You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
    Tip: This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”
    This also means that retweeting an article is perfectly legal (or so I perceive it to be).

  • http://www.chicwriter.com/ Shevonne

    How about when you embed images from sites like Flickr and Pinterest?

  • http://twitter.com/digitaliprod Digital I

    That’s a very interesting question, because it is unique to the Internet context.

    To my knowledge reposting, retweeting and linking to a site which contains copyrighted material would only accrue some kind of liability to the person reposting if they were aware the work in question was an intentional infringment that clearly did not sustain a fair use defense. 

    There’s always the argument in legal circles of the “reasonable” action. That is, if most people looked at the content and were able to determine that the material should be protected by copyright, then reposting it would be see as a willful infringement. 

    It is important to understand that just because you may consider something “fair use”, the copyright owner can still issue a cease and desist order, and can still sue. Copyright is a civil matter rather than a criminal one, so all that is required for legal action to be taken is an aggrieved copyright owner. 

    The question of republishing (a more global and legally accurate term for re-tweet, etc.) is further muddied by the fact that the technology of the Internet makes a local electronic copy of material in order for you to view it. This very action violates the usual prohibition against “transmission” and “storage in an electronic medium” which is included in many copyright notices. Even if no one “retweets” a blog with an image, the mere act of opening the page in the browser “republishes” the content. That’s why it has been so difficult to get clear case law on these questions. 

    Disclaimer: I am not an attorney, but have worked extensively with licensing and protecting digital intellectual property. The previous comments are for informational purposes and not to be considered legal advice of any kind. 

  • Fred Friendly

    So how exactly do google news and yahoo news operate with their thumbnails?  They can’t possibly be paying for every photo thumbnail they use!  it would be hundreds of thousands of photos every day they would have to pay for. Please explain how they are using fair use in their news services.

  • http://www.beachcombercommunications.com/ Angela Crocker

    Terrific article, Sarah. Copyright, fair use, creative commons & public domain are topics I make a point of covering in the courses I teach. Of course, copyright law in Canada (and other parts of the world) vary some (or a lot!) from the USA which poses a huge challenge for us all as we communicate globally across the Internet. My suggested approach is to follow legal and ethical guidelines of countries that acknowledge a balance between the rights of creators and users. Thanks for laying out such best practices here.

  • http://www.fanwalla.com Leon Lewis

    Here’s another solid resource for copyright info and the web: http://www.centerforsocialmedia.org/

  • http://accountant-in-nottingham.co.uk/ MShah

    Indeed Angela: the best approach is following ethical guidelines and am sure no country will be with a law which is not covering ethical guidelines. Legally it may be a bit challenging. My take is the rights of the users and creators is equally important to save the subject from mad rush and infringement of personal privacy.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    If you RT something, you’re (hopefully) sharing the original site for the post/image. A RT alone would not have you re-posting an image. True, if you cut/paste a tweet it may have the person’s avatar that may be subject to copyright but the resolution is so low that it would likely be covered by fair use.

    Reposting articles to Facebook which will populate an image (hopefully, if it’s working right!) again does not populate the full resolution of the image and may therefore fall under fair use. In addition, you’re directing your audience to the original with this ‘teaser’.

    Reposting articles in full with an introduction, would not likely be Fair Use because you can easily direct the audience to the original after making your commentary.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Keith, there are several excellent source for free images for download:

    My top 3 are:
    http://www.morguefile.com/
    http://www.photos8.com/
    http://www.freedigitalphotos.net/

    As for hotlinking, that is generally frowned upon because it does pull bandwidth and that may cost site-owners money.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Flickr images are protected by copyright unless otherwise stated. You can find the license information for each image on the right sidebar under ‘License’ and you’d need to use only those images that would allow for your use. Flickr has a Creative Commons community – http://www.flickr.com/creativecommons/ – and you can use those images for the purposes licensed.

    Pinterest TOS do not grant any type of license to 3rd users. If you want to direct others to something that is pinned you should do so by link rather than cut/paste of an image or content. If sharing the pin, the image size is greatly reduced and thus may be covered under fair use.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Fred,

    Several years ago, the US Court of Appeals, Ninth Circuit, ruled that Google’s use of thumbnail images was a fair use of the copyrighted images. Perfect
    10, Inc. v. Amazon.com, Inc., et al, 487 F.3d 701 (9th
    Cir 2007)

    Since it was a US Appellate Court it does have influence in other circuits but it is not true precedent since other circuits do not have to follow, although they likely would.

    The caption is referencing Amazon, as it was the lead defendant, but Google search engines were the primary focus and was also a Defendant in the case.

    Hope this explains it sufficiently.

    Sara

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Angela,

    Thank you for reading and commenting. Yes, US law is the focus in my article. But as you mentioned, US law is often very different than laws of other countries. As a perfect example is the reference above to Google using thumbnail images. It appears it is Fair Use in the US but in other countries it has been ruled to be copyright infringement.

    Finding that balance can be a challenge. Even though you don’t intend to market to people outside your home country the fact that the internet can be seen (with some exceptions) by nearly anyone makes us all potentially liable in other countries.That doesn’t even just apply to Copyright either. Defamation, decency, religious and cultural laws and norms often create a diverse view of what is and is not protected.

    Thank you for pointing this out. For those who market internationally, there are more concerns to be aware of today.

    Kindly,
    Sara

  • http://www.chicwriter.com/ Shevonne

    Thank you so much!

  • Dailadawn

    What about images found on Microsoft ClipArt – are those free to use in presentations / on websites / etc?  I’ve never seen anything asking you to pay for them . . . .

  • Nabil Stendardo

    Copyright is a proof that the law is not keeping up with technology (and such laws are ipso facto in favour of incumbents). Same as patent law (IIRC patents lasted 20 years before the industrial revolution, and last for 20 years now, while the people’s invention rate is higher and the usefulness time span of an invention is lower). Not to mention the ever-increasing copyright duration.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Dailadawn,

    With clip art, you need to read the license that comes with it (which you likely agreed to but didn’t read – like most of us – when you installed it) to determine the appropriate uses. Likely there are strict limitations.

    Sara

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Nabil,

    That has been one of the biggest arguments in the Copyright area – that technology is making the laws not only hard to implement but, often, irrelevant and draconian. Unfortunately, we’re stuck with the laws until they are changed either my legislation or clarified through judicial intervention.

    The arguments for patent reform have been on-going since I was in law school in the 1990s and the dot-com boom changed the patent landscape a great deal.

    But, we need to work with what we have or be the impetus for change (which has been historically slow).

    Thank you for your input,
    Sara

  • Kimoaz

    Hi Sara,
    Can people use pictures off of the MLS to up-date their own  restate website?
    jim

  • http://gomosolo.com/ Sadie-Michaela Harris

    Thanks for sharing this Sara, really useful information for anyone who has an online presence to be au fait with. :)

  • Pingback: LINK: Copyright Fair Use and How It Works for Online Images | Medical Web Strategies()

  • http://www.catwisdom101.com Layla (Cat Wisdom101)

    Sara, excellent post. As a professional photographer I post a massive amount of images at both my blogs: Cat Wisdom 101 and the Boomer Muse. How would I ever find out if any images are stolen? Re: what you said about “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.” Specifically, I’m curious about transforming one image from one medium to another like another like the controversial Shepard Fairey poster of Barack Obama.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Kimoaz,

    You have to read the TOS for your MLS Service. If you are a realtor who has access to the MLS the TOS should address using images that were taken by the lister/listing company or the company they hired and likely copyrighted by them. If you are not a member of the MLS, the answer is easier – no, subject to fair use arguments.

    Sara

    – Not Legal Advice – 

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Layla,

    While not foolproof, TinEye is one of the bigger image reverse search platforms. Google also has a ‘reverse image’ search function in that you can search by image now with Google. Many believe that the new Google Image Search function will render other options worthless, but that’s still to be seen.

    Unfortunately, there is nothing automated. And, to make matters worse there are some social networking platforms that strip out EXIF information so you can’t even use that data for searching.

    Hope this helps,
    Sara

  • http://www.allnaturalpetcare.com/ All Natural Pet Care

    Having wasted time on these matters before, I can’t tell you how much I appreciate this post.  It’s amazing how many people believe that they can just grab someone else’s work for their own benefit.  It’s also amazing how they flutter angel wings and blink innocently when they’re called on it.  I mean c’mon, we learn about plagiarism in the 4th grade.

    Another belief is they can publish someone’s content on their website and say it’s for the purpose of educating people.  That is not what the educational ‘clause’ is referring to.

    Now that the engines are penalizing for duplicate content, it is even more important for people to fight for their content rights. 

    Creating original content is a lot of work.  Creating GOOD original content is even harder.  Nobody has the right to just steal it, any more than they have the right to walk off with the stereo you worked hard to get.

  • Casdanben

    Excellent article thank you. We in the craft industry,specifically rubber stamps and digital image downloads are dealing with copyright infingements worldwide and on a daily basis in many forms. It becomes disheartening.

  • http://www.carolinerdonnelly.com Caroline

    Which takes precedence, laws of a particular country or the Berne Convention? (Assuming that country is a signatory.) For countries that have signed both Berne and WIPO, their laws are all the same, is that correct?

  • http://www.catwisdom101.com Layla (Cat Wisdom101)

    Thanks Sara, and happily shared.

  • Pingback: Why You Must Get Permission to Use Copyrighted Photos — and How to Do It — Productive Writers()

  • http://www.thenerdynurse.com/ The Nerdy Nurse

    Something I spend so much time on: Finding images that I can actually use. A post without images is just so…. boring.

  • http://www.singfreenow.com Mark Bosnian

    A couple of specific laws to keep in mind:

    * Visual Artists Rights Act of 1990, title VI of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5128, enacted December 1, 1990.

    * Online Copyright Infringement Liability Limitation Act, title II of the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2877 (amending title 17 of the United States Code, to add a new §512), enacted October 28, 1998.

    * Digital Theft Deterrence and Copyright Damages Improvement Act of 1999.

    * In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act. For further information, see Circular 40, Copyright Registration for Works of the Visual Arts.

    http://www.copyright.gov/title17/

  • Jana Pierce

    Thanks, Sara! You’re article is a wake up call to me to pay more attention. I appreciate the down-to-earth advice!

  • Lilyana Abdul Latif

    Thanx Sara. I agree with Jana.  This article is very clear and useful. I guess it is “Fair Use” to share your article with my other friends?? :-)

  • http://blog.digiaindra.com/2011/11/finding-and-correctly-attributing-images/ Ian Fenwick

    Very useful. I also did a bit of research on tools to allow bloggers to easily meet the usual requirements (even for Creative Commons images) for attribution of the images to the original owner (http://blog.digiaindra.com/2011/11/finding-and-correctly-attributing-images/)

  • http://www.adam-laurie.co.uk Adam

    Hi Sara, great article thanks for that.

    Could you just clarify for me what to do/where i would stand in this situation –

    I am creating a video tutorial series of a commercial software program that i have bought.

    I would be using Camtasia software to record myself using this commercial software program showing the public how to use the software.

    The video tutorial series would be available to buy from me, either by
    paying a fee to watch online and download or paying a fee to buy a DVD
    version.

    Would using my recorded footage of me using this commercial software program that i have bought to use generally be classed as fair use and could i expect the sell the tutorial series without any issues coming from the manufacturer of the commercial software program?

    Does how you sell the product to the public make a difference? For instance if i were to charge a membership fee to a website that would allow the paying members to access files of the tutorials be different to just selling a DVD of the tutorial series.

    There are a lot of companies out there (e.g. http://www.Lynda.com) who sell tutorial series on various commercial software programs, are they only doing so because they have permission to film their use of the software program?

    Thanks a lot

    Adam

  • Bonz [Con Tour]

    Thank for this Atty. Somehow it shed light to us newbies in blogging industry / world. :-).

  • http://www.i95dev.com/ecommerce-magento Henry Louis

    It is an interesting way of explanation about copyright fair use. Nice information is posted.

  • Lydia Bartlett

    If you include a photo credit of the original creator alongside an image does this suffice?

  • Marianne

    You can find an overview of the best resources for free stock photos at http://www.whichstockagency.com/en/19/category/free-images/agencies

    However, it’s important to remember that you get what you pay for in a commercial environment and if you pay nothing, well, you’re likely to get close to nothing… a reject image, an image that has never sold or even an image that might infringe some copyrights. Who knows? However, if you really have no money, you can’t afford to pay rock bottom microstock prices and you’re aware of potential pitfalls, then free images are useful.

  • 2social2

    Thanks! I use SocialGO

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Adam, it’s harder to talk about how to use software without mentioning it by name or showing how to use it. While I can not offer you legal advice, based on the information out there for fair use that showing the software as it is used would likely fall under fair use. You’re not giving away the software or the code. Selling the tutorial would take you out of the ‘for educational purposes’ reason for fair use.

    But people do tutorials, product reviews and demos all the time and showing copyrighted material is often covered by fair use because they are not using the copyrighted work as itself.

    Hope this helps.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Glad to help out! 

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Lydia,

    No, attribution does not make copyright infringement OK. See above:

    #1: 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.

    Thank you for asking for clarification.

  • http://twitter.com/TamRachel Rachel Tam

    When ever i need an image, whether it is for class or personal usage, the first place I check is Google image. I thought it was fair game if I could search for it on Google. If the owner of the image really cared, wouldn’t they put their watermark in the background or have their signature at the bottom?

  • http://SocialZing.org Cheryl

    I learned my lesson a few years ago about using copyright images when I was contacted by the attorneys of a photo-management company. I was lucky not to get sued. Now it’s strictly stock photos for me! 

  • http://www.esparkinfo.com/ Nitesh Ahir

    your blog is good & very much informative… great work… really appreciate…

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  • Rob

    Scenario And Question:  Two friends get together and create a technology.  Friend A is the reason the whole venture begins and the technology is not patented or trademark.  Friend B puts the technology together and Friend A gives it fine tunings. Friend B puts money up for equipment.  Friend A photographs the result of the technologies functioning.  Friend A markets and sells fine art images and uses images from collaborative work of friend A and B. Friend A gets permission and then friend B flip flops and claims the images are his and this is despite 12 months of marketing under friend A.  Friend B never paid Friend A one dime nor was their ever a terms of use contract.  Friend A has burned through two expensive digital cameras and has spent 100’s of hours enhancing and manipulating images for commercial use.  The time spent by Friend A working with Friend B would have cost in upwards of $18k.  Friend B has also accepted money on the images before.  Friend B has received two contract opportunities speaking to terms of use and he has rejected them each time.  At this time friend A is unwilling to give up images but friend A has established a separate account for sales with a royalty of 30% of profitability per sales. Friend B wants to create new site and start over which friend A is not willing to do because of marketing, brand recognition and 12 months worth of work on them. 

    I understand that once a photographer sets shutter, copyright is set.  I want to make sure as every article I have read is fuzzy with a ton of gray area.  I am a partner to friend A and have money invested so obviously I am concerned.  Friend A brings way more to the table than friend b.  Friend b is a selfish dude who does not work well with others.  We have wasted 6-8 months of the last year because friend B calls are printer to try and stop them and emails threats of copyright and plagiarism.  What do you think?

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Caroline,

    The laws of a particular country will be precedent. If they are a signer to a treaty then the country must also adhere to the construct of the treaty and not have laws that are contrary to the treaty. If the laws are more strict or contrary to the Berne Convention then the treaty would control, so long as they are a member-nation.

    WIPO oversees a multitude of treaties, including the Berne Convention and many other IP treaties. With regard to copyright, WIPO Copyright Treaty (WCT) attempted to fill in the gaps when it came to internet and online copyright, rental of copyright and copyright as applied to counterfeit goods. WCT is an extension of the Berne Convention and is an extension of the Berne Convention.

    Countries who have signed on to Berne and WCT, and other treaties, do not necessarily have the exact same laws. They may be similar but there may be slight differences.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Rachel, Google Image Search is an indexing mechanism and Google does mention that images may be subject to copyright.

    Many people, myself included, do not always watermark images because the watermark can detract from the visual we’re trying to create. In addition, I have found that even if I do include a notice – often in the lower right – that others will crop my image and take out my copyright info (which is illegal and subject to high fines).

    There are also times when someone has paid for a stock image and uses it legally. Google can’t differentiate this and these types of images do not carry watermarks.

    In the future, it may be best to know the source of your images rather than using Google as the source.

    ~ Sara

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Cheryl,

    I’m sure that was a bit stressful, but it demonstrates that there are people and companies out there who are vigilant in protecting their intellectual property. I’m glad it worked out OK though.

    Sara

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Thank you, Nitesh, for your kind words about my article and the Social Media Examiner site.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Rob,

    This sounds like you may want to hire an attorney for a few hours to get a plan in place should this situation escalate. This is not simply a copyright concern, as there are likely contractual issues (which may include, implied and verbal) that exists.

    Unfortunately, I can’t comment on your specific situation (due to ethical rules). The situation is quite complex given that there are no written documents related to what Friend A and Friend B agreed to.

    ~ Sara

  • http://www.speed-sew.com/ Owen Clark

    Hello Sara,

    I regularly do a google search for a keyword then click images and use an image in my blog post or newsletter.  Not sure if I am above the line or below the line?

    Thanks for this in depth article.

    Owen

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  • http://twitter.com/SaraFHawkins Sara Hawkins

    Owen, using Google Image Search will offer you an array of images. However, unless you know for certain that the image you are going to use is in the public domain you risk using a copyrighted image. Further, even if you attribute back to the page you got it from you may be giving attribution to the wrong copyright holder which can escalate damages sought if the copyright holder so wishes.

    It would be better to use a source where you know that the image you are getting is in the public domain or licensed in some manner.

    Sara

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  • D. August Baertlein

    How about grabbing the image of a book cover off a seller’s site to use on a book review blog?  I have considered that fair use, especially since I never review anything I can’t recommend, but I’d love a legal opinion.  Do I need to link back to the seller’s site?

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  • http://www.keystoneclick.com Lori Highby

    Wow – great article.  One question I have, is it okay to use an image as long as you cite its source by including the link where the original image came from?  I’d think that’s not much different than writing a term paper and citing the source of the information being written.  Plus, you’d think the site owner would be happy to have a linkback to their site for SEO purposes.

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  • http://www.facebook.com/San.Diego.Marketing.USA San Diego Marketing

    I’ve always been curious about the implications of unauthorized use of photos online, but the thing that I wonder though is, how would they know which ones/sites are using it? Do they have a capacity to track every single website that has put it up or just the one that’s been reported by a user?

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  • http://www.icu-india.com internet marketing belgium

    what a amazing post

  • http://www.icu-india.com internet marketing belgium

    what a amazing post

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  • bellevuedentist

    Sara,  What an informative and interesting article. That is a lot of information.

    I have three comments that have happened to us.  A few years ago, we were selected for a Top Dentist List in Seattle Magazine and they ran a separate special story about our office as well–I got permission from the magazine to post one of the article photos on our blog. A few weeks later, the photographer who had done the photos in our office called me and wanted $800/yr or removal of the photo.  I had a letter of authorization from the magazine and called them.  I never heard from the photographer again.  The moral here is get permission for any pictures you use on your website which we commonly do with our patients.

    Second item is about a photo on our website that I took of a beautiful patient’s smile.  Upon doing a back-link check I found this photo with credit given to our website. However, the smile now had 36 very small upper and 36 very small lower teeth as it had been made into an unnatural looking smile and somewhat grotesque as a cartoon–on a French website.  So I felt there was not much I could do.  I was never sure how to handle this.

    Third item occurred this last summer.  A young lady walked into our dental office (as well as many others I suspect) and handed our receptionist a stack of business cards promoting free meals at this very well known restaurant chain, one of which is very close to our dental office.  All we had to do was sign the card and give it to any young child that came into our office for an exam–no strings attached.  The photo of the handsome young boy on the card was my son and it was his head and bust cropped from a photo of him in a dental chair that was used in an article on our blog about two years earlier.  I was concerned that someone was selling his photo from our blog.  I talked to both the local restaurant manager who authorized the card pass outs in our area and the regional sales manager for the restaurant chain.  Interestingly they said no one had sold them the photo, but they had no idea how they had gotten it after talking to their PR department.  The Regional Sales Mgr also claimed the photo was public domain since it was posted on our website.  What are your thoughts on this one?? 

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  • Claureano

    This is the best discussion of the issue I have found so far. I’m curious to know if using a thumbnail of a book cover for a book review would fall under the “fair use” category, since it was for use in criticism. Now, does that change if the site on which the post is used has a commercial purpose (or commercial aspects, even if that is not the main purpose of the site)?

    It seems to me to be a similar situation as the Amazon suit listed above, but as I have not read the entire ruling, I don’t know for sure.

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  • http://twitter.com/SaraFHawkins Sara Hawkins

    Can’t give you a legal opinion but it would be best if you took the image from the publisher. Using an image of a book cover to review the book is likely to be determined as fair use because you’re likely using it for commentary, criticism or news reporting. As for linking back to the seller, it’s not the seller’s intellectual property. They’re likely using it under fair use or a license. Linking to a seller is a decision based on several factors, one being monetization.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Lori, using a copyrighted image on a website doesn’t work the same was as a term paper. The citations used in a term paper are minimal portions and the citation is used to distinguish the source. In term papers, passing off another’s work as ones one (which is potentially what occurs when there are no citations) is plagiarism and handled differently than copyright violation.

    As for a copyright holder being happy to have a link back, that’s not always the case. People whose livelihood comes from these images don’t appreciate people taking their work. Link back or not, copyright infringement is not dependent on whether you tell people who created the work. Also, for SEO it may not be to their benefit because it could potentially harm their search ranking because of duplicate posts being indexed or alternative keywords or meta data being attached to the image. Furthermore, it could create confusion as to who the real author/creator is if there is a tagging error or if there is a misattribution.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    There are multiple sources that index images, as well as a pingback system that often advises a website owner when someone links to their site.

    Google is doing a great job, as is TinEye, of creating indexing algorithms based on the raw data embedded which often can not be stripped out by the average user. And there are harsh penalties for stripping out data to encourage infringement.

    Ultimately, though, many copyright holders rely on others finding the image somewhere and letting the owner know.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Claureano,

    While I can’t give you a legal opinion, Using thumbnail images is one criteria used to determine fair use. By using a smaller image, you’re demonstrating the goal is not wholesale taking. Further, as you mentioned, the purpose of using the image of the book cover is to provide criticism. Although, the criticism may not be as to the book cover but rather for the book in general. However, using a book cover is often for news reporting or commentary.

    Whether or not the site is commercial doesn’t often come in to play because copyright laws are not dependent on whether the infringing party is doing so for monetary gain. In the case of book reviews, the fair use argument for using a thumbnail image of a book cover when providing such commentary/criticism/news reporting is very strong.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Sorry, Bellevue Dentist, you’ve had these difficulties.

    Your first situation seems like it was miscommunication between the photographer and the magazine. It was good that you got an authorization from the magazine. The photographer and magazine likely had some type of relationship and the photographer may have misunderstood what it was.

    The French website issue sounds very creepy. France has a similar law to our DMCA, called DADVSI which may have allowed you to ask for the infringing image to be taken down. However, it is outside the scope of this article and my scope of knowledge. You’d likely need to hire counsel familiar with the laws of France to assist you. That is, of course, unless they’re using a US based hosting company.

    The issue with your son’s photo being used is even more creepy. First, let me re-iterate what I’ve said many times (and apologies for the all caps, just using for emphasis and not to yell at you) JUST BECAUSE IT’S ON THE INTERNET DOES NOT MEAN IT IS IN THE PUBLIC DOMAIN. That is one of the biggest misnomers of copyright law. Without offering legal advice, if they are still using the image of your son, I’d suggest you seek legal counsel immediately and not only stop them but also seek damages. They may not want to tell you where they got the image but they’ll start talking when it comes to being sued. Whomever took the image has copyright claims to use of the image. However, there may be violations of other laws relating to privacy and personality rights.

    NOTE: Nothing in this reply is to be deemed legal advice. The reply is for informational purposes only.

  • zorro

    Hi Sara,
    Do you know if these laws differ in Canada?
     How about use of photos for school projects and educational purposes?  I have students want to use logos of their favourite hockey teams, animals, books in little Powerpoint presentations fro their class?

  • http://twitter.com/JBGoodbody Jason Goodbody

    Great article
    How might this apply to use of images in satirical stories?  The Onion uses images that they certainly didn’t take themselves. Most, it seems would come from AP or Reuters sources but there never is a citation. Have they likely licensed these images and paid for their use or are they likely using a fair use claim?
    Thanks
    J

  • http://profile.yahoo.com/5K7ODFF37TU6JSQ7UELDMW344I TonyN

    Sara, I need to be shielded by the fair use act on a large scale.
    Can you email me, flsportflying@yahoo.com ?

  • http://Www.pinfluence.com/ Heather @ Pinfluence

    Thank you for this post and for continuing the conversation here in the comments. I am a blogger that takes diy pins found on Pinterest & recreates the project with my own spin & blogs the process.

    Is it permissible to take a screen shot (with the inspiration pin displayed on the screen) and publish that on my blog? And, if so, would I (should I) link back to original source? Or should I simply provide text links?

  • http://creative-culinary.com/ Barbara | Creative Culinary

    This is a raging issue in the world of food blogging. I decided at one time that I do not have the resources to keep after each person who uses my work and have come to peace with a link back being enough as long as they don’t copy the article in its’ entirety, including photos, and adversely affect my SEO. I do know some bloggers who do not agree and will spend way more time then I have available perusing the web for their work and issuing takedown orders via the web host. I guess the most surprising facet of all of this is the wrong assumption that if it’s out there, it’s free and clear to take. Thank you for such a thoughtful and intelligent article that helps to explain a complicated and often ignored issue.

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  • Kelly Grace

    Hello Sara, Mike suggested I read your posts and direct my questions to you.  I also wanted clarification about what internet content could legally be posted to Pinterest or Tumblr.  I’ve read all the posts and I think you are saying that copyrighted photos are an obvious no without written permission, but non-copyright photos posted as thumbnails used on aesthetic curative sites are generally deemed fair use.  Does royalty free mean it is not copyrighted?  Is sxc.hu a good source?
    I am glad that I’m not the only one confused by the changing landscape introduced via the Internet, but I’ll be glad when the legislation reflects the current situation. Thanks for your contribution to this site.
    Kelly Grace

  • http://sarafhawkins.com/ Sara F. Hawkins

    Canada’s copyright laws are similar to US but not exactly the same. I can’t speak to the exact differences as it would be outside the scope of my expertise and for potential liability purposes I can’t go into the nuances.

    With regard to US Copyright law, using copyrighted images for educational purposes often falls under fair use. However, using the logo of a favorite hockey team when the image has no real purpose related to the commentary or discussion would potential negate any fair use argument. Students should be taught to give the source of the image and credit the copyright holder. In addition, they should be discouraged from removing or blurring any watermarks. 

    That being said, most copyright holders will give a pass to students when it’s solely for a paper or presentation for their class and there is no commercial aspect involved. But, I said most, because, well, with all the social networking sites the copyrighted image can quickly be splashed across the internet. 

  • http://sarafhawkins.com/ Sara F. Hawkins

    From my experience with The Onion, they do have a license for many of the images used. Satire and parody of copyrighted works get a bit of a different treatment. And though satirical, The Onion is considered a news source so many of the images used are related to a newsworthy event. 

    I have no personal knowledge of what exactly goes on at The Onion. These are my opinions based solely on personal research and interpretation.

  • http://sarafhawkins.com/ Sara F. Hawkins

    TonyN, if you scroll up and click on my name next to ‘About the Author’ you’ll be taken to my website and you can reach me via the contact form there.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Heather, I’m working on a post about copyright and Pinterest. Using screen shots of anything can pose problems because the author of the copyrighted work is often not indicated or credited. Depending on what the screen shot includes it’s possible there could be a fair use argument. Often, it’s best to link back to the original post that provided the inspiration.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Barbara, thank you for visiting and commenting. The food blogging world is a very unique community. I’ve written a couple of posts related to recipe copyright and recipe ‘theft’. Many have chosen your route and let it go unless it’s egregious. Food and craft bloggers are particularly impacted by the idea of ‘if it’s on the internet it must be free to take’. 

  • http://www.pinfluence.com/ Heather @ Pinfluence

    Thank you so much for your reply!  I will continue simply linking. :)

  • curiousperson

    If I want to copy an image by painting it by hand on a shirt and add some other image and text from the original work, would that be considered a copyright infringement?

  • blt54321

    Is this an example of fair use it educates the person watching and the original copyright holder didn’t do that
    Just look at my youtube channel and tell me if its fair use TopTenOnEverything I have the right to use everything except the pictures and that’s what i am worried about.

  • Vidar

    Hi there!
    As an aspiring artist, I would like to know if it’s okay for me to use pictures I find
    on the internet (ex. Google) to make new artwork.
    I can for example take 20 different pictures that I find online, cut out parts of them, 
    edit them(size, color, form etc.), and put it all together in a completely new image,
    which looks nothing like the source pictures, and are completely taken out of “context” 
    if you know what I mean.

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  • http://www.MoviesGrowEnglish.com/ 5935mike

    Sarah–  Thanks for a clear and insightful examination of copyright laws as they apply to the internet.  I’m developing a website that uses movies to teach English.  The plan is to sell the whole-movie lessons for $1.  In order to identify the movie and characters visually, the movie masthead (logo) and photos of the main characters (found on the internet) are included in the lessons.  There are also attributed quotes from the movies.  These lessons are clearly for use in the classroom.  Because of this, I think there is a strong case for “fair use”.   However, I’m not sure about the “non-profit” issue.  Is there a strong case for fair use here?  Do you recommend that I set up a non-profit company?  Any other advice?  Thanks much. 

  • http://sarafhawkins.com/ Sara F. Hawkins

    CuriousPerson,

    Based on the scenario you described you’re likely outside of the ‘Fair Use’ paradigm. Since the work could possibly be deemed transformative you’d have to examine the concept of Derivative Works under Copyright law.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Josh, I can’t comment on a specific instance and tell you yes/no as that would be providing legal advice, which this is not. The courts do not have a very broad definition of ‘education’ when it comes to copyright law because they goal is to balance the rights of the copyright holder with the need for the public to know. Posting YouTube video that may be monetized or lead back to websites that are commercial concerns are not likely going to be seen as ‘educational’, although it is possible. 

    The broad definition that something is education if it teaches something or is something from which people could learn is not the same definition a court will use in determining if an alleged act of copyright infringement is ‘educational’ under the Fair Use test.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Hello Vidar,

    As I mentioned to CuriousPerson (above), what you describe may not be covered by ‘Fair Use’ as it may create a new ‘original work of authorship’ and thus be covered under the laws pertaining to Derivative Works.

    That being said, “… copyright … in a derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.” 17 USC 103(b)

  • http://sarafhawkins.com/ Sara F. Hawkins

    5925Mike,

    Fair Use does not distinguish between use by a commercial entity or by a ‘non profit’ entity. A copyright holder may be more sympathetic to certain non-profits but there is no priority given to a non-profit vs. a for profit entity engaging in copyright infringement.

    Using movies brings with it big movie studios with a lot of money and legal firepower. I know people who have had copyright rights in a work and yet were issued cease & desist letters by movie studios causing them to abandon well into the project. If the copyright holder/movie studio were to challenge your use, would you have the money to fight? 

    This is definitely something you should discuss with an attorney prior to your undertaking. Because Fair Use is ONLY determined by through the legal process (likely a judge, rarely a jury) you would have to be willing & able to put your project on hold (as you’ll likely get an injunction from distributing it) to litigate or possibly come to some settlement. Movie studios do not back down easily to claims of Fair Use, as they have both the money and legal expertise to challenge your assertion.

    Whether you wish to claim it as a Derivative Work or as a Fair Use definitely consult with appropriate legal counsel before investing too much into the project and risking not being able to proceed.

  • Rich

    Sara,

    First, I found your article very informative and helpful.  Thank you for taking the time to go over these points.  

    I run a small game review website.  Every article is used to critique games.  Am I correct to assume this is generally “fair use”  Second, many competing sites have sections where they display video game characters with a biography attached.  There is also several images of the characters.  Could I find myself in trouble posting these characters with biographies attached?  It’s strictly for information.  

    I look forward to hearing from you

    Thanks,

    Rich

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  • http://sarafhawkins.com/ Sara F. Hawkins

    Rich, while I can’t speak to exactly the scenario you presented I can say that they key will be the purpose of image use. As a review site, it’s difficult to review a product thoroughly without providing sufficient detail for the reader. The source of the images will be key. If the product manufacturer/marketer is providing them there should be a tacit agreement to use the image for review purposes. 

    Since a video game is interactive, using a screenshot of a character could arguably be Fair Use because it is de minimus and has a low likelihood of interfering with the copyright owner’s rights. Having an image of a character does not mean a reader of a review has access to the game itself.

    Most reviews are commentary or critique of a product or service. With video games being interactive, still images are the least likely to be interfering.

    With regard to text, any time there is a cut/paste of copyrighted material (such as a character bio) there could be problems. It’s relatively easy to rewrite short descriptions into your own words so it flows with your particular writing style. If having specific information is key, consider using press release sources or news sources provided by the copyright holder.

    Many people want to get permission from the copyright holder, however that becomes impractical for the copyright holder on such a large scale. Relying on fair use doctrine for a product review is often the only way to use images/text from the copyrighted source. And in doing so, keeping in mind the evaluation criteria for Fair Use usually keeps everyone happy.

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  • Xara

    Hi Thank you for the informaton, its interesting but I still need few questions and concerns regarding Images or copyright law. At present I’m in mid launch of a new blog/site dicussing Game Reviews and games in general (http://www.consoleclub.co.uk/). Nonetheless I if possible need to show images/photos of these games on my site.

    Would it be legel for me to take images belonging to the Creator for the games and submit them on my website, or would I have to get hold of the makers everytime I desired to do a new post? I’m very sure it might be 100 % legal for me to purchase the games myself and after that take pictures of which I post to my blog?

    One last problem if you don’t mind, is going to be Tv related, if I were to take a display screen shot of any Tv show could I legitimately display that on my internet site? Thank you for your time.
     

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  • http://sarafhawkins.com/ Sara F. Hawkins

    Xara,

    Taking a photo of your TV with something on it may be permissible, depending on what it is and the context in which it will be used. There may be additional laws in the UK I am unfamiliar with, but in the US, the Fair Use doctrine would apply to placing a photo of a copyrighted work on a website. While your photo of what is on the TV screen would be your copyright, there may be copyright claims to what is on the screen that you are photographing. I know it’s not a clear discussion, but copyright law does make things complicated.

    Using a still image as a ‘screencap’ to discuss something that is part of a larger work is likely to be fair use. Further, using a small static image of an interactive game when specifically discussing the game for purpose of criticism/teaching are classic examples of where the Fair Use doctrine would be applied. Often game manufacturers will provide clear images for press purposes so they can ensure quality examples are used. You may want to check with the game manufacturers to see if they have press image libraries available. If so, they would be allowing use of copyrighted images under a license.

  • CS

    Hi Sara,
    I was wondering about dowloading picture from the net and printing them for my personal journal? Is that breaking copy right rules?

  • http://sarafhawkins.com/ Sara F. Hawkins

    CS, copyright grants exclusive rights only for certain types of use/activity (17 USC 106). Using a copyrighted image for your own private purpose such as journaling, creating an idea board or the like would not likely violate a copyright holder’s exclusive rights granted.

  • RCD

    I am about to launch a website that will contain links to outdoors related stories about hunting, fishing, camping, etc, which are already on the web. I am not doing the reporting, the reports are already available (similar to the Drudge report, I guess). I would like to use photos from those linked stories, or others, like a pic of a turkey or deer, for example, that relate to those stories. Fair use?

  • http://sarafhawkins.com/ Sara F. Hawkins

    RCD, thank you for your comment. For a number of reasons, I can not tell you if the use you describe is or is not Fair Use. If after reading over the criteria for evaluating if using a copyrighted image would be permitted under the Fair Use exception you are unsure, it would be best to consult with an attorney that practices in the area of copyright.

  • loisc07

    I have posted my own picture (my portrait) on my website with a “copyright” statement for all my articles and photos on the home page. Lately, someone copied it and posted on his own blog and many different discussion forums as a way to attract viewers when he insults me. However, he claims “fair use” according to internet laws.  Can this be “fair use?” Please tell me how can I ask him and the forum’s directors to remove my picture from all these places? Thanks.

  • bmcd

    How does this copyright law come into play with free sites? If a site (like creationswap.com) offers free images for use on your website, do you still have to credit the source?

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  • Timanlandscape

    I do amature road bike races and there is a woman who posted photographs of me on a public site called flicker. What right does she have to photograph me without my permission. I copied the photos to my computer and she wants recognition if i post them somewhere. What rights do i have. Again I am an amature racer

  • http://sarafhawkins.com/ Sara F. Hawkins

    People can claim Fair Use but as mentioned it’s not up to them. If you believe your copyrighted image is being used without permission and in violation of copyright laws you may want to look in to issuing a DMCA Take Down notice with the various hosting companies. If you are unsure or don’t wish to do this yourself contact a DMCA Take Down service such as CopyByte (run by the very capable Jonathan Bailey).

  • http://sarafhawkins.com/ Sara F. Hawkins

    You would have to comply with the terms required by the website for free images they provide. There are many sites that offer free stock photos and clipart. However, each have different rules about providing credit.

  • http://sarafhawkins.com/ Sara F. Hawkins

    There are separate rules that relate to people taking photos of others in public. A photographer always maintains the copyright unless there is an assignment of such rights or a Work For Hire agreement. As a general rule, event photographers or private individuals may take photos of people in public without recourse. There are some caveats regarding national security and if there is a reasonable expectation of privacy. Riding in a bike race is not likely a national security issue and may not rise to the level of having a reasonable expectation of privacy. If you were to stop to use a bathroom that’s likely a privacy concern but in general riding a bike on a public road would not likely raise any privacy concerns.

    If you post photos taken by someone who owns the copyright then you need to comply with their requirements. If the photographer wants credit then it’s within her rights to ask for it.

    That being said, there are laws that govern what may be done with those images of people in public if they are used for trade or advertising purposes. The laws regarding model releases would need to be reviewed if that were the case.

  • Bvbeau

    I’m on a forum and there is a person posting images that she claim are hers but I did a Google image search and they are defiantly not! They belong to crafters and people that are selling their craft she has been told politely that she could be violating copyright laws but she thinks she has done nothing wrong claiming theres are better pictures of work she has done. Should I contact the people that that she has copied the images from? 

  • Corey James

    Can a person gather images that are viral and show them on a website? I’m thinking political snark, insult snark, etc that may also use other copyrighted materials for the purposes of making the snark come to life?

    (Sorry, I know I’m hitting this thread pretty late in the game)

  • NimithaMc

    Dear Sara,

    I have a doubt about the copyright images.

    Can I use images from Google images on my Facebook fan page? (not my profile, fan page). A picture speaks a thousand words! When I write a post (for ex: about a skyscaper) on my company’s Facebook page, I browse for the images on Google and post them along with my write up. I am not sure if the image I selected is copyrighted or not.

    Can I continue that way or am I in a trouble?

    Please help me with this Sara.

    Thanks.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Bvbeau, if you are the forum moderator you have the right to take down any images you feel may compromise the integrity of the forum. If you are not the moderator, you may wish to inform the moderator and in doing so provide links to the original sources you have found.

    Still, you may wish to advise the copyright holder of the images and allow them to take the course of action they believe is necessary.

    ~ Sara

  • http://sarafhawkins.com/ Sara F. Hawkins

    Corey, if the use of the copyrighted images would meet the multi-part test for Fair Use the image may be used for that purpose. Snark is hard to categorize as it may fall under parody and, if so, the rules for use of images for parody are not the same as the general rules for Fair Use.

    You should talk with someone who can advise you more specifically regarding your exact use and categorize how you are defining “snark” since that’s not a legal definition and can mean many different things.

  • http://sarafhawkins.com/ Sara F. Hawkins

    NimithaMc, any time you use a copyrighted image there is a risk that the copyright holder will claim infringement. That may come in different ways, and on Facebook it could be a private message, a post comment on the post or possibly a more formal complaint to Facebook.

    Yes, lots and lots of people use copyrighted images in the status updates. Some of the largest companies in the world even. But that doesn’t make it right. What it does is make it harder for copyright holders to control their rights. Indeed, using an image on Facebook may be Fair Use but, again, there is always the risk.

    It would be best if you used something other than Google to find your images, as there are many sources of free (public domain) images as well as creative commons images. With Creative Commons images you may need to provide attribution, but that’s pretty simple.

    ~ Sara

  • NimithaMc

     Thanks a lot Sara for the valuable information!

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  • Lynne Kensington

    What about pictures of actors (screen shots or otherwise) from fan sites used on a blog? I’ve seen blogs where authors show the pics to give an idea of who their hero/heroine is based on. I was considering doing the same. 

    Is is okay if I link back to the fan site or to IMDB or should I just find a model from one of the stock sites who is similar in appearance? Naturally, when it comes time to produce the book cover, that would be stock images, but I wanted to know if it’s a problem using the actors images on my blog, particularly if I talk about what attributes of theirs sparked my interest/reminded me of my character.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Lynne, with celebrities using their images often comes not only with copyright issues (b/c they did not take the photo someone else did and thus has rights to it) but also with publicity rights concerns. 

    The photographer who took the photo most likely would own the copyright but the actor/actress/celebrity would still maintain rights over how their image is used. That’s a very tricky area when combined with copyright. A photographer may permit use of his/her image but that won’t over-ride the individuals rights to control publicity rights.
    It’s a very fine line between using a photo of a celebrity for news/commentary/education (Fair Use) and either suggesting or having others believe on their own from implication that there is some connection between the celebrity and your work.

  • guest

    hi sara,
    wat if one transforms and make changes in the images(wdnt resemble da image) i downloaded and then use it to print them(havin not said my work for sure)??
    plz wd await ur reply

  • http://sarafhawkins.com/ Sara F. Hawkins

    This is a great questions, but not easily answered. Transformative and derivative works enjoy their own protection under copyright without infringing the original work. That is a completely separate area of Copyright law that can get complex because there is no set rule as to how much of a work can be taken and used in a Derivative Work or how much must be “transformed” for it to be a new and separate copyrightable work.

  • Ben

    Sara I loved the article! You informed us all well!

    I was wondering if on-line directories that link back to other websites would be considered “fair use”?

    These directories obviously have thumbnails of the images from the original websites and the images link back to the original website.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Ben, there are so many different variations of online directories it’s difficult to say one way or the other whether use of another’s image would be Fair Use. There have been several law suits regarding copyright aspects of indexes using image, but specifically for directories it’s not as clear. Unfortunately, I can’t offer a specific answer due to ethical limitations. The facts specific to your situation would need to be evaluated as there is no one set answer.

  • Johnny HighTop

    Hi Sara, great article.  I have a few questions if you don’t mind.

    1.)  I have a blog and I post a variety of different things.  Sometime it’s 100% my content.  Sometimes I post a link to a news article on another site, I include just a tiny snippet of content from the article, and then I put a paragraph or two of my own thoughts about the story.  I would really like to include a photo to go along with the post.  Can I take the photo from the original story and post it on my site?

    2.) (very similar to #1)  I visit a lot of news sites on a daily basis.  And I see images of President Obama, Harry Reid, Nancy Pelosi, Sarah Palin, etc…  And I see the same images/photos used on many different sites. In fact, I just went to Yahoo! News and also Fox News and they both have the same exact photo of a woman from the Wisconsin Sikh Temple Shooting.  Can I assume that it would be safe for me to right click and save that image to use on a blog post on my own site about the Sikh shooting?  Same with photos of Reid or Palin, could I take a photo from one of the news sites and use that photo on my blog site if I have a post about one of them?

    Thanks!

  • http://sarafhawkins.com/ Sara F. Hawkins

    Johnny,

    It’s easier for me to answer Q2 first – most major new outlets have subscriptions and licenses from a variety of sources (Getty & AP are 2 of the largest). You often see the same or similar images used across a variety of news sources because they all pay to access these images and use them. Rarely do they use them under Fair Use. The rest of us don’t pay for the images so right clicking and saving a copyrighted image poses problem. Yes, there could be a Fair Use argument. But you have to be willing to deal with the photographer or agency contacting you with an invoice for use or possibly issuing a DMCA takedown for copyright infringement. 

    As for Q1, any time you take a photo from another site there is the risk of being notified of copyright infringement. As I mentioned, most major news outlets subscribe to image services or hire photographers. They may have some in-house, but as you noticed many of the new agencies use the same images. Taking a photo from another comes with risks. You just have to be willing to deal with the consequences if you take the image under a belief of Fair Use.

    Often the images are watermarked so you can see who owns the copyright.

  • Semi-retired musician

    Sara – Thanks for your great website and the various posts and answers!  I haven’t seen this question before, so I hope I’m not being redundant.  My plan is to create and post, on YouTube, a video of a song (copyrighted) for which I’m the co-writer, and which was sung and recorded by a vocal group in which I’m a both a member and its founder.  The purpose of the video would be, of course, to promote/advertise/whatever both the group and the song.  For the video, I found pictures on Google Image to “illustrate” the various lines of the song.  I’m absolutely delighted with the photos I found, and haven’t found anything nearly as good on various “free photo” sites.  In my “first cut” at the video, I used 16 different photos – some were used more than once, for a total of 26 separate “scenes” during the video.  I suspect the video itself could be called a “derivative work” – but that’s not my concern (the more people see it and even USE it, the merrier!)  What I AM concerned about is whether I could “get in trouble” for using the photos I found.  Each photo is, of course, only a small part of the totol video, and I think I saw something about that in the “fair use” doctrine.  I admit (shame on me!) I’ve done this before (posting YouTube song videos using photos obtained from Google Images), but this particular song MIGHT (hope springs eternal!) have more “commercial potential” than any song video I’ve previously posted.  I haven’t gotten any “cease and desist” orders on any previous videos, but maybe that’s because the number of “views” has been limited.  If I were to get “major numbers of hits” on this proposed new video, would that change my chances of somebody “coming after me”?  Thanks!

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  • http://www.andreealaza.ro/ Andreea Laza

    Hello and thanks for the article! Was really really great to hear from someone who knows these things. 

    I didn`t understand this part: 
    “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).”

    My question is: How do you ‘fair use’ or how does your ‘use is covered by fair use’? Because you said that if you act under fair use, then no attribution or link back is required and everything is ok.

    Again: How do you ‘fair use’ or ‘use fair’?

    Thanks guys!

  • Rhiancable

    Hi Sara.  Firstly Great read, thanks for that!    We’re starting a website and will need images of various current ‘news stories’, which will be used for 24-48 hours only then updated to another story.   This is a non profit venture (maybe generating money in the future??) and each image will have the option to comment on (i notice ‘comment’ in you ‘fair use’ section??).  We will be using all our own wording and will by citing the exact location the image was found, including links back to the original page if needs be.  Images will not be amended in any way, although may be cropped down (although citation to the full image will still be included).

    Images from stock photography sites are fine but not any use to use as we need to use images that are current, and about real people.Do you have any advise on this please?  
    Thanks
    Rhian (MSc Marketing, MBA)

  • http://sarafhawkins.com/ Sara F. Hawkins

    SRM,

    Using copyrighted photos within a video can pose a number of copyright issues. While it may seem like a daunting task, it might be in your best interest to contact the copyright owner of the images (16 actually isn’t so many as you can use the same basic email) and ask for a free limited license and offer to credit the copyright holder.

    For extended commercial purposes, if this video were to become “more commercial” the financial liability may also increase substantially.

    One of the significant drawbacks of using Google images is often the image is not linked to the copyright holder. 

    Yes, the video would likely be a derivative work. However, a derivative work that contains copyrighted material can create legal liability from the underlying work. 

    And, while many people do this – use copyrighted photos with music which they then upload to YouTube – it’s not always free of liability.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Andrea,

    Fair Use is an exception to copyright infringement. Even though you are violating someone’s copyright, if it is determined to be Fair Use (and, while many people come to this conclusion themselves in actuality only a court can legally determine if an infringing use is covered by Fair Use) then the infringement is “overlooked”.

    A good analogy is the claim of Self Defense. The underlying crime was still committed but the judge then says it’s OK b/c it was self defense. Fair Use is kind of like copyright self defense. ;-)

    The criteria for determining if a use if Fair Use are not exacting, but I tried to explain them clearly in the article. It’s difficult to say what exactly is Fair Use because each situation is different.

    If you have further questions, let me know.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Rhian, Use of images for news commentary is often seen as Fair Use. However, the two major sources for images – Getty and AP are also known to be extremely vigilant in protecting their copyright and license. Other sources of images may be more willing to agree with an assertion of Fair Use if the significant criteria is met. As for the “comment” option you mention, that’s not the same as the “commentary” factor used in evaluating Fair Use. Having a 3rd person leave a comment does not make the use “commentary”. It is your use of the copyrighted work that would need to meet the Fair Use criteria. Be very careful with cropping images b/c there are significant penalties for removing any copyright notice information.

  • Kasey

    Great article Sara, thank you.  I’m still not clear on the “for non-profit educational purposes” language in the law.  I’m a Corporate Trainer for a company with about 3,500 associates.  We’re a medium size company with a profit motive.  Because I’m using images for “educational purposes” for both PowerPoint and Participant Guides am I covered under “Fair Use”?  I’m confused about the “Non-Profit” issue.  We’re not generating revenue by selling our training to other businesses but we’re not a non-profit.  Thank you in advance for your assistance.

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  • http://sarafhawkins.com/ Sara F. Hawkins

    Kasey, the “for non-profit education purposes” was originally included to allow schools and students access to copyright protected material without the fear of lawsuit. Historically, colleges, universities, and K-12 programs were non-profit. Now, there are many that are “for profit” which the law has not caught up with. “Educational purposes” is not interpreted as broadly by the courts as private citizens use the phrase.

    Even though a business is using the information to educate (as in to help someone learn) that’s not what the intent of the law goes to. If that were the case, most any corporate use could be argued that it is for educational purposes since the goal is often to educate (help the customers/clients learn).

    There are many companies that use copyrighted material for internal purposes. However, doing so is done at their own risk as, unlike in the past, today it is very easy for the information to be leaked and the copyright holder to enforce their rights.

  • Pantaleo8

    Is saving an image [from a website] on your harddrive without posting, puplishing, or presenting, considered fair use.
    J.C.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    J.C. – saving an image, obtained online, is not use and therefore can not be considered Fair Use. Possession of a copyrighted image does not give rise to a copyright infringement cause of action and therefore no need to raise the defense of Fair Use.
    Possession of an image, depending on its content, can give rise to other liability though.
     

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  • Graphic Designer

    Hello Sara, I read your article on image copy write infringement and had a quick question.

    I work for a publishing company that publishes a car magazine that is distributed for free to the public. It contains graphic designed ads, that we produce, for local car dealerships. My boss has me “grab images online with google images” all the time. We use the images for backgrounds for the ads that the car dealership pays for. Tell me, is this illegal? If it is I will greatly consider quitting.

    Thank you for your time.

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  • http://www.kunvay.com/ Kunvay

    We’re big fans of using Creative Commons licensed images.  As more and more ISPs crack down on copyright infringers as the technology for enforcing copyright gets better, everyone will have to look for ways to keep themselves on right side of the law.  We’re on a mission to make the world safe for creativity.  We understand it’s not easy for creatives or people who want to use the creative work of others to always do so in a way that conforms with legal realities.

  • Laura

    Hi, Sara.

    Thank you for your great article.  My question is about downloading pictures from the internet to use on printed flyers.  I’m trying to educate potential donors to my non-profit organization about the importance of having appropriate sports medicine care available at high school sports practices and events.  To illustrate the point, I’ve downloaded images of two high school athletes who suffered heat stroke a couple years ago. The one whose school employed an athletic trainer lived and unfortunately, the one whose school did not employ an athletic trainer died.  I usually print/use a handful of these flyers at a time as part of a folder of information about my organization.  Is it ok to use pictures like that in that way?

    Thank you in advance.

  • http://rkforever.wordpress.com/ maria

    Sara, hi,

    I’d like to congratulate you on your patience in replying in detail to so many questions! I hope it hasn’t run out! I’ve created a blog for mainly my own entertainment with no high aspirations. It’s about my favorite celebrities so inevitably I repost images from other similar blogs with original commentary on each news item. Now, I’ve noticed in other blogs that they include a ‘via’ link under each post which does not usually direct the reader to a news site that could have possibly published the news item first, but to another blog from which they copied the image. Is that done as a way of avoiding being tracked? I mean, this way, you attribute your source (the other blog) but not the original source which could be a major network with watchdogs – as you mentioned – who would spend time and money tracking down copies of their stories or copyrighted images. This is a common and very widespread policy among celebrity blogs. I suspect it is in breach of copyright laws but is it really legally pursued or is it considered common practice and largely ignored? And does linking back to the original source (e.g. a large news site) risk being tracked down more than citing a blog as a source? A second issue: some of the images I get from other blogs, I enhance e.g. I blur the background so that the person comes into sharper focus which makes the image more beautiful. I haven’t noticed that in other blogs (except for their banners) but it’s widely done in youtube tribute videos which consist of image compilation (they are dramatically enhanced and photoshopped). Since this only brings out the photographer’s work would it be considered a violation?

    I don’t have high hopes that you’ll answer these questions so many months after you posted your interesting article, but you can’t blame a new blogger for trying… :)

    Maria

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Any time you take an image from Google images you risk violating someone’s copyright. Even though there may be claims that it is now a derivative work (outside the scope of this article) the copyright holder may not be all too kind.

    There are many sources for free images that you may want to explore.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Creative Commons licensed images are a terrific source and it’s commendable that so many people are willing to share their images like that. What I find, though, is that many people don’t understand the different Creative Commons licenses and are still violating copyright.

    You’re right that it’s not easy, but there are many free resources to help people understand how to do it right.

    Thank you for sharing your comment.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Laura, your scenario poses two separate issues – (1) use of copyrighted images and (2) publicity rights of individuals.

    In your case, as a non profit, it might be in your best interest to contact the copyright holder of the images and get permission to use the images.

    That, however, will not relieve your organization from any liability that may exist from using the likeness of a person for whom permission was not obtained.

    I don’t mean to be evasive in my response but, unfortunately, the scenario you mention raises a number of legal issues. 

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Maria, yes, I do reply! It may take me awhile b/c I don’t always get notifications but I try.

    Congratulations on starting your blog.

    You pose a few questions, and I’ll try to answer each of them.

    (1) the “via” link – that’s a way bloggers say “thank you” to the blog where they got the info. It’s a courtesy given and there are often very hard feelings when someone posts on a topic but doesn’t give credit to where they first found the info. It has nothing to do with liability and more to do with courtesy.

    (2) attribution to original source of image – unless the image is used under a license or with permission requiring attribution, copyright law does not require attribution.  This is especially true with Fair Use. Fair Use does not require the copyrighted work to have a separate attribution. That’s not to say you shouldn’t attribute the work, because you don’t want to pass off someone’s work as your own. Most major networks use licensed images that contain embedded information that is trackable, so downloading the image and reuploading it won’t change that aspect of the image. If you’re using an image from one of the big image houses they’ll find you even if you don’t link back to the original site.

    (3) modifying copyrighted images – this is a separate area of copyright law that is rather complex. Derivative works in copyright can gain their own copyright, separate and in addition to the original work. It is beyond the scope of this article. Blurring a background will not likely elevate the new work to that of being a Derivative Work, so you should still be concerned with the copyright holder’s rights.

    Thank you for asking your question. I hope this is additionally helpful.

  • kay

    ok so for my crafts class at school we are learning to screen print on t-shirts and i wanted to use sports logos, my teacher said that in order to print the logos that we have to get permission from that company to use it, and by the way we are not selling any of these t-shirts (just giving them to family members) are we able to use the logos without getting permission from the company or owners?

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Kay,
    Your teacher is correct. This presents both a copyright and trademark issues. For purposes of this discussion I’ll focus on the copyright issue.

    The sports team logos are copyrights owned, mostly likely, by the respective team and/or league. Using a copyrighted image raises the claim of copyright infringement. 

    If you were only using the logos to learn how to screen print and then discarding the item there would be no problem. Even if you were to take a photo of your handiwork that would likely fall under Fair Use. However, by screen printing the copyrighted sports logo onto a useful item and giving it away you there is a great likelihood of copyright infringement and very tenuous connection to the Fair Use exception. 

    Even though you are using the copyrighted sports logo for educational purposes, one of the exceptions for Fair Use, the second step of then distributing the copyrighted work would not be likely be Fair Use. This would also not likely rise to the level of a “derivative work” (a discussion of which is outside the scope of this article).The copyright holder has the exclusive rights to determine how, if at all, their work is distributed. In this case it’s a bit more complex because there is the added dimension of there likely being a trademark issue.I wish you the best and I’m sure you can find another work that is either in the public domain or which can be licensed under a creative commons. There maybe some options on Flickr, which has a creative commons community. Just check which creative commons license is granted.

  • Emilee

    Thanks for a very informative article!

    I have been creating coloring pages for my Kindergarten classes by downloading free coloring pages from websites like Disney and Nick Jr. and adding typed messages on the pages prior to printing them. Since I am altering the images is this copyright infringement? They are free printables from the websites so I didn’t think this was an issue, but I would like to make sure.

    Thank you for all of your great advice!

  • ziggy1996

    This is a very informative and interesting article but I’m confused about something.

    If you take a picture with a camera of a TV screen playing a show you like (and pay to receive), crop it a lot so only the feet are showing, add words to it and post it on a site, with no intention of selling the image and  with a bit of blurb underneath about the TV show and how you like it; is that allowed under fair use? 
    And is it under your copyright or the other party’s if you take a picture of a copyrighted image? 

    And if you take a picture in someone else’s garden of, say, a flower or something, is that copyright because the flower was actually their flower and not yours?

  • Ana

    Sarah, thank you so much for your article and all your answers! I couldn’t stop reading the blog and learned a lot from it. And I still have a question about my particular situation.

    I have photos of my husband taken by different people since the 60-ies and given to me by him. Unfortunately, my husband  passed away. He was quite well known in his profession. Together with my daughter we opened a site about him where we posted a few of these photos and planned to add more, creating a nice photo collection.  For most of the photos I have no idea who were the photographers. Where we knew, we have indicated.

    Recently, my husband’s son from the first marriage asked my daughter to look at the photos which we have of his father. She emailed practically the whole collection of photos without even asking me. It turned out that all the best photos will be published to accompany an article about my husband in a journal. Later, I was only asked to make files with higher resolution. I was told that If not, the journal will publish these photos anyway.

    Of course, it is great to have an article about my husband published. However, I would not want to give all these photos to the journal; some are not quite appropriate for this.

    I understand that since I am not the photographer, I have no copyright. I am sure the journal will have enough resources to protect themselves in case of any law issues.

    But  do I have any rights for these photos at all?

    Do I have the right to ask the journal not to use certain photos in this article and not to use in the future the rest of the photo collection without my permission?

    I would still want to make a nice collection of photos available on our site. Can I do this or it will be a violation of the copyright laws? Can we post at least the photos which will appear in the journal?

    Thank you  very much for your time and attention.

  • Jane

    What if someone takes a diagram that you have created and re-creates this diagram in a different style and places it on their site? The content of yours and theirs is identical and you created the image from scratch (it was something you came up with yourself). Would you be entitled to have it taken down or does their recreation of the image mean you haven’t a leg to stand on?

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  • anonymous

    question:   is it ok to take a picture of a picture or whatever is on the screen of my iphone (which is done by holding in both the power button and the home button at the same time.)  the picture could be a post on instagram, pinterest, etc and reposting it on instagram just for fun ? like for instance…. it could be an inspirational saying that you want to share on instagram…. or possibly a cute outfit that you want to refer back to (from pinterest)… like just storing it in my photo album on my phone, laptop…  thanks !  and thanks for this informational post!

  • http://www.learningliftoff.com/ Scott Holm

    This is an interesting point but I’m not sure if it answers my specific question. I work for an education company and I often blog about technology that may be of interest to the parents and students enrolled in our programs. I am planning to write a blog post this week or next about Google’s new Nexus 10 tablet. I think it’s a particularly attractive option because with Android 4.2, there are multiple user accounts which makes these new tablets compelling for families on a limited budget who would like a tablet that the kids can share. So, would I be able to grab an image of the Nexus 10 from Google Play and upload it as a reference image in my blog post? All I intend to do is show people what the tablet looks like as I describe it. I just don’t know what rules I need to follow to review products like this. Any ideas??

  • http://twitter.com/SaraFHawkins Sara Hawkins

     Emilee, there are Fair Use exceptions for education. Teachers often use printable found online to use exclusively with their class. Your school may have a policy regarding using these 3rd party sites, but that would be something to check with separately. Using an online printable solely for in-class purposes will likely fall within Fair Use standards.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    ziggy, you present 2 different scenarios.

    Taking a photo of something give the photographer the copyright (unless there is an agreement which alters the basic assumption). Taking a photo of something belonging to another person may have other legal ramifications but as for copyright, it is the general standard that the photographer owns the copyright immediately creating the image.

    Regarding taking a photograph of a copyrighted image/object that’s much more complicated. What you explain could be the creation of a derivative work (which discussion is beyond the scope of this article) and thus the new derivative work could obtain its own copyright in the new parts without infringing upon the original copyright. I’m unable to say specifically whether what you describe is or is not fair use because it is very fact specific and may create a separate copyrightable work.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Ana, first, my sincere condolences on the passing of your husband.

    With regard to the photos you mention, they all likely come with a copyright by the original photographer. Your use, just the that of the journal, are subject to copyright laws regardless of whether the copyright holder can be identified.

    When copyright holders can not be identified, it makes sense to upload the  work/image in an attempt to locate the photographer/copyright holder. When this is done, the resolution is often just enough to have a nice photo but not high enough to reproduce the image if it were to be copied.

    The journal would be subject to the same copyright laws as you and their publication of copyrighted images without permission could bring about significant liability if the original copyright holder comes forward.

    As a general rule, for works created
    after January 1, 1978, copyright protection is provided for the life of
    the author/photographer/creator/artist plus an additional 70 years. For an anonymous work,
    a pseudonymous work, or a work made for hire, the copyright term is 95 years from the year of its first publication
    or a term of 120 years from the year of its creation, whichever
    expires first. For works first published before 1978, the term
    will vary depending on a number of factors and that takes some specific research.The likelihood of any of the images being beyond the copyright term or in the public domain is probably very small. Thus, there are significant copyright concerns with publishing the images. Fair Use would be permitted, but the general uses mentioned in your comment may not be sufficient to provide a Fair Use defense.As for protecting your husband’s rights it would depend on your state and whether it recognizes rights of publicity and how those rights are passed on at the time of death. You have every right to ask the publication to work with you to ensure that your deceased husband’s profile reflects him in best light but if they are not contracted with you they may not be wiling to do so.It may be worth a discussion with the publication though because there is potentially significant liability for using copyrighted images.Best of luck!

  • Yasmin

    This is a fantastic post, thanks so much. If I post a photo from creative commons with the appropriate link back to photographer as required on my face book page, is this ok?

  • http://twitter.com/NanAnnHan Nancy H.

    By publicly posting images and/or content on Facebook, you are giving FB full rights to them. Stock photo sites do not allow ANY transfer of rights, so you can not use purchased stock photos on Facebook. Here is how Facebook words their own terms:

    For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

  • Yasmin

    So does that mean the only images I can use on FB are ones I have personally taken? sorry confused as all the FB pages I see use lots of images that are obviously not theirs.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Jane, I’m unclear what you mean by ‘re-creates … in a different style’. It’s the work that is copyrighted, not the idea which is why we often see different versions of similar infographics. At the same time there is the idea of derivative works, which may come in to play.

    The words may be copyrighted, but there are instances where the words in infographics may not be sufficiently original to give rise to a copyright.

    The words, themselves, must meet the criteria needed to create a copyright. No all words are copyrightable. Without knowing more it’s hard to say whether your words/content would be covered under a copyright, for which a DMCA takedown notice could be filed.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    You pose several different questions.

    Taking a photo of a photo does not negate the copyright in the original photo. You may obtain a copyright in your photo but the rights of distribution may be limited if they would infringe the rights of the copyright holder of the picture you photographed.

    Images uploaded to Instagram are, per the TOS of Instagram, protected by any rights the holder may have. Term 5 is: The Instagram Services contain Content of Users and other Instagram
    licensors. Except as provided within this Agreement, you may not copy,
    modify, translate, publish, broadcast, transmit, distribute, perform,
    display, or sell any Content appearing on or through the Instagram
    Services.

    The TOS expressly prohibits a multitude of actions with regard to Content found on Instagram. May believe that because it is on Instagram that the person who took the picture wants it to be shared. However, that may not be true in all cases. There may be Fair Use exceptions with regard to how images found through Instagram may be used, but, in general, all User Content found on Instagram should be presumed to be subject to copyright.

    There is great debate about how Pinterest should be used. If there is a “Pin It” button on something you want to pin, you can feel confident that the image was meant to be shared. However, you should be concerned as to whether the copyright holder is the one actually offering it to be pinned. While some may wonder who wouldn’t want their work pinned and shared, there are issues related to attribution as well as part of Pinterest TOS that are not agreeable to the copyright holder.

    The US does not have an established standard for lawful personal use copying of copyrighted material, except with regard to digital audio/video recordings. As such, downloading copyrighted images from the web for personal use is often reviewed through the Fair Use standards.

    Sorry I can’t be more specific or exacting, but the aspects of copyright law you’re asking about aren’t settled.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Scott, take a look at site like engadget, Mashable, cNet, Gizmodo and the like and you’ll see that all those sites do what you’re speaking of – reviewing/unboxing new technology. Some do use their own images while others will use an image provided by the manufacturer. Using the image of a product from the manufacturer’s website with appropriate commentary or critique is often covered by Fair Use. Some tech manufacturers even provide images specifically for use when reviewing their products.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Yasmin, there are several different types of Creative Commons licenses so you’ll have to check which one it is and make sure your use complies with the specific CC license. There are 6 different type of Creative Commons licenses so it’s difficult to say if your proposed use & attribution would be compliant with the specific CC license attached to the image used.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Yasmin, using images on your FB page for which someone else owns the copyright may open you up to liability. There have not been any court cases of people suing for copyright violation based on having shared an image on FB.

    FB is compliant with the DMCA so that if a copyrighted image is used in violation of the owner’s copyright then the copyright holder can have the offending post taken down.

    Like many other social networks, if something is posted for public consumption then other users are granted permission, through the Terms of Service, to further share it.

    Using a copyrighted image which was found somewhere else on the internet and uploading it to your wall may be a violation of the copyright holder’s rights. Your posting of your own images does grant FB a license for use. What exactly FB would do with it no one really knows b/c they’ve never just used a random photo for anything. FB also understands that users may upload content for which they do not own the rights so they take precautions.

    Facebook users (as well as Google+, Tumblr, and others) do upload copyrighted images without permission. It often presents problems, but as of right now copyright laws are lagging behind advancing technology and it’s a learning experience for many.

  • Thedesigneroriginal

    Hello,
    I read your article and am still a little confused because i guess I did not get a direct answer to my concerns. I have a magazine and we wanted to know how other magazines used designer shoes, perfume, jewelry and other items in their magazine.  And if I could use images we see on the internet as long as we put the designers name where to purchase the item and amount it cost ?  Please reply at my email thedesigneroriginal gmail.com

    Thanks
    Yvonne

  • MikeKN

    Hi Sara. I want to join others into thanking you for your time in writing this very indepth article and giving such detailed answers.

    So I have a website that is made as an informational resource (for critiques, comments, news etc) that contains a high amount of copyright content. It’s an entertainment website with photos of celebrities and cropped/resized images from movies and tv shows in the form of like a database/library. In a perfect world I’d like to think that everyone views this as fair use.
    So I know the safest legal way to go is to get permission for use of images, but I can’t imagine that every popular entertainment website has the permissions to post such images in their new articles, reviews, blogs etc. I see these sites as fair use too.

    I chatted to a lawyer and even though I’m not using these images directly for commercial use (eg. charging people to view the content on my site), the fact that I make revenue from ads that are on my site is apparently an indirect commercial use of these images, ie. people are visiting my site possibly because of the images and I’m making money as a result. So there could be legal trouble here. This could also be the case for the other entertainment sites I mentioned.

    I do see on some of these sites that they have a disclaimer that states something along the lines of:
    “This is an unofficial site. All characters and related indicia belong to their respective (c) and TM owners. All original content 2012 Company Name.”

    Some sites even have this additional line.
    “All (c) and TM images found in this site are the property of the original creator and can be removed if the author wishes. We retain no rights over these images.”

    So my question out of all of this is, short of getting permission from every company/person for the use of celebrity photos and movie/tv images, which realistically could be impossible, is there any way to be protected from a copyright lawsuit? Is the disclaimer above even worth anything, or would it just be tossed out in court?

    Thanks so much for your time.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Yvonne,

    Magazines that use copyrighted images use them under several different legal theories. (1) License – by purchasing a license from one or several photo agencies the magazine can use copyrighted image, (2) Permission – many magazines routines write about certain brands that they have written agreements or have contacts at the brand and obtain images directly from the brand, and (3) Fair Use – while an image may be subject to copyright, if the image is used as part of criticism or comment the magazine would likely raise Fair Use as a defense if challenged.

    Simply providing attribution to the brand and/or designer would not absolve you of any legal liability. You would need to have authorization to use the image from the copyright holder or a defense, such as Fair Use, should the copyright holder disagree with your use.

    Due to ethical considerations, I am unable to give you a specific reply regarding your exact situation. If you still have questions it may be best to seek legal advice. If you wish to contact me directly my email is: sara at savingforsomeday dot com.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Mike,

    Thanks for your comment. You actually pose 2 separate
    questions. First, though, using copyrighted images. As I mentioned to
    Yvonne, above, magazines (and, well, to be more broad, major
    entertainment, news, fashion, tech, etc. websites) often use images
    under a license, with permission or claim Fair Use. Indeed, many major
    websites do pay (handily, I might add) for a license from image wire
    services such as AP or Getty. This is especially critical when using
    photos of celebrities or newsworthy people. Using images from these wire
    services without paying the license fee, even if claiming Fair Use,
    will often result in some type of demand for payment and an accompanying
    Cease and Desist.

    Since Fair Use is something determined by a
    court/judge, raising it only works in a court of law. The copyright
    holder still has the right to sue and/or file a DMCA Takedown. That
    right is often very costly both in time and money to the alleged
    infringer.

    The second issue you raise has to do with Publicity
    Rights. Using the likeness of, in your case, a celebrity must be done in
    a way that does not violate any state law regarding their rights to
    publicity. California is often the lead in this and you may want to do
    some research to determine if what you’re planning does not run afoul of
    publicity and related rights.

    Hope this is helpful. And, again, thank you for your comment.

  • Sherlea2

    hi, i want to use a thomas kinkade picture as a business logo for my craft shop on ebay and etzy, would i be breaking the law on copyright?regards sherlea uk

  • http://www.facebook.com/lezzy.speed Lezzy Speed

    Hi someone is using my image I request that they take it down and was told about fair use. This person is using my images in a negative article I did not give her permission to use my image and I have report her to blogger can I sue her?  

  • http://www.facebook.com/lezzy.speed Lezzy Speed

    oh and she point blank refuse to take down my image 

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Sherlea2, using a Thomas Kinkade image for your own commercial purposes would likely violate the copyright owned by the estate of Mr. Kinkade. Using a copyrighted image for your business logo is something that should only be done with permission (written) or under grant of a license. There is no fair use argument for using a copyrighted work for your own commercial gain.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    I you believe someone is using your copyrighted image online in violation of your copyright you should look in to filing a DMCA Takedown notice if the alleged infringer will not cease using your copyrighted image.

    Fair use is a defense to copyright infringement, but is decided by a judge/court and has to have a legal basis based on the 4 basic criteria set forth above.

    As a copyright holder you do have the right to sue. However, there are a number of legal requirements that will need to be met to do so. If you are considering suing you should seek legal guidance from an attorney who has successfully litigated copyright infringement cases.

  • http://www.learningliftoff.com/ Scott Holm

    Thanks for the reply, Sara. I think I’ll do what I mentioned and grab an image of one of the tablets my post will be discussing and use it. I don’t think there is any way that someone could argue that my use is detrimental to the copyright holder, especially since I’ll be talking the products up, not down! The whole fair use game is a tough one but I think I understand the rules a bit, and of course, will always do my best to be respectful of someone’s original work. 

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  • Tri Widyatmaka

    I’m a book cover designer. And I want to use images that are on a websites, how do I track its copyright? And If I had found the owner of the image, should I ask permission to use it? How do I know that an image is copyrighted, since there is so many websites are using it? Thank you.

  • http://searchbuzz.co/ SearchBuzz

    Great stuff.

  • M.

    Thank you for the great article!

    I actually have an internet question myself!  What about use of an image as a forum icon?  Does that fall under fair use?

  • Guest

    A truly excellent article, thank you for taking the time to write it. I wonder if you could answer a question for me; I have a website giving information on various herbs. Is it fair use to have a picture I’ve found online on the page for each herb (eg a picture of lavender on the lavender page)? I thought this would be okay because the purpose is to provide information not just decorate the page, but I’d really appeciate it if you could give me a solid answer. Also, does it make a difference if the image is a photograph or drawn?

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Tri, with so many sites using copyrighted image without as much as a link back to the copyright holder it can be a difficult task to find the rightful owner. Try using TinEye or Google Image search as they will often give you the date so you can search for the first upload.

    If you can not locate the original copyright holder, it is best not to use an image. Many images are subject to copyright (I’m excluding those that are Public Domain) and using a copyrighted image for a commercial purpose without permission from the copyright-holder poses significant legal concerns. As a book cover designer you may have to indemnify the publisher/author for any damages related to using a copyrighted image without permission. In addition to the money damages, the reputational damage may actually be more costly and one you’re not willing to risk.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Forum icons are often smaller than a thumbnail and according to recent court cases may fall under Fair Use. Not all thumbnail/small images are covered by Fair Use but there is a very good argument that forum icons/avatars do. The difficulty is that if a copyright holder wishes to challenge you there’s that to deal with. Unfortunately, there isn’t one exact answer since Fair Use is a case by case situation. Many forum moderators will ask participants to take down avatars if there is a copyright issue because they don’t want to get sued. But, if the use of the image meets the criteria for Fair Use then it’s just a matter of defending the use if the copyright holder objects.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Cerys, it does not matter if the image is a photo or a drawing as both are given the same type of copyright protection. It would probably best best if you searched for public domain images to use. Many governmental websites have photos of agricultural items that are public domain. Also, check creative commons as another source of images.

    If you are using a copyrighted image it would be best to obtain permission. It’s pretty easy to set up a template email and just drop in the URL of the photo and ask for permission to use a certain size and offer to provide a photo credit. You’d be surprised at how accommodating many photographers/artists are.

    The question of Fair Use isn’t something I can answer definitively. There may be an argument that your use is covered but there is also a strong argument that it is not. Fair Use is definitely a legal construct where you have to weigh all the factors on a case by case basis.

  • Guest

     Thanks for your reply, that’s great advice.

  • Rogeriost

    Sarah, I had a photographer take pictures of my family, and part of his photos package was linking some of the pictures to my Facebook. Do I need his release to print copies of the pictures he posted on my Facebook or are those fair game?
    Thanks

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Rogeriost, find out what the deal is with your family photographer before you print. Many will upload low-res images so they don’t print well anyway. The right of reproduction belongs with the copyright holder, which is likely to be the family photographer as very few will assign the copyright to the family. Check with the photographer before reproducing any images. Even if higher-res images were uploaded, they weren’t done as a waiver of their copyright. Read over the agreement you have with the photographer to determine what, if any, rights there are to you. Sharing the images on Facebook would likely be a Fair Use (as distribution rights belong to the copyright holder), but printing them even for your own personal, non-commercial use likely will not.

  • Liam

    Great article Sara! I would like to ask you something, what happen if you offer products from one company in your website and use their photos? Let say I want to sell products from the US in a foreign country, can I do it without authorization of the american company? Can I use their photos? Thanks

  • CCris

    Hello,
    Lets say I have a website on door knobs And I got an image of door knobs from google images, a thumbnail inage. I place the image on my site, now I am not promoting or talking about the company that the image is from. The article on the site is educational and talks about diferent door knobs like entry door knobs, cabnet doorknobs and their related parts.

    Can the owner of the image demand that I pay them $700 and remove the image? Can they sue me or am I protected under the fair use and educational clause?

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Liam, if you are an authorized seller/reseller there may be an agreement and, if so, use of images may be spelled out in the agreement. If you are not an authorized seller/reseller it gets a bit complicated because there are copyright issues of two countries. Depending on the countries, one may offer more protection than others or have different rules regarding registration or how copyright is established.

    If there is no legal relationship or agreement, the complexities of using a US-based company’s copyrighted image on a website that is located in another country and targets residents of that country complicate things. It’s one of the reasons many will just photograph the item and then not have to deal with a copyright issue regarding using of a copyrighted image.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    CCris, since Fair Use is a defense to copyright infringement that allows for use of a copyrighted image without remedy to the copyright holder there must be (1) a copyrighted image and (2) infringement.

    Fair use is determined by a court, not by the copyright holder or the alleged infringer. As such, the copyright holder can demand removal of an image and demand payment for use of their image. That doesn’t mean you have to comply. But, you have to be willing to defend yourself if they wish to sue.

  • http://profile.yahoo.com/EUSXCIXCK7HQPGQACWWFCAY36Q GulleyJimson

    Great article and I also have a question:

    Do I still need permission from the individual whose cropped image I post on my website even though I received permission to use the image from the web publication/photographer?  This particular individual is withholding property (some original artwork) that still belongs to me and would like for my peer group to be aware of such a deed.  I am only interested in whether I can legally use her image.  Any statement I make about this individual would be wrapped in legalese as she is a practicing lawyer/judge.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @yahoo-EUSXCIXCK7HQPGQACWWFCAY36Q:disqus because many states have laws about publicity rights, when it comes to using images of people you have to consider both copyright as well as publicity rights issues. There are many questions when using images of people, which is why having a model release is something to consider when taking photos of people. Many of the laws regarding publicity rights give consideration as to where and how the image of the person was obtained, so you’d have to look at that as well.

    If the photographer has granted permission to use the image of a person that would not have protection under publicity rights laws, and for which no other restrictions would apply, then use would be governed by copyright laws only. Statements made about the photo or person in the image are not covered by copyright, but would be subject to defamation laws.

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  • Ilan

    Hey Sara,
    Thank you for this post, it is exactly what I was looking for and very informative.
    I would like to ask a question please: I am setting up a website with a multitude of product reviews, and I want to include many photos for each product. I was thinking of simply using google’s image search for finding commercial images of each product and including them. The problem I can think of is that I will be using images from many different websites.
    On the other hand, these images have little artistic value (I believe) and were created solely for promotion of each product, so how does that factor in for deciding whether this is fair use?
    Another question is whether the caching of an image on my website plays a factor (vs just hotlinking to an image).

    Thanks so much for the post
    Ilan
     

  • Marty

    I don’t think this has been covered. If, instead of posting the image, I link to it on Google images, am I more secure from an infringement claim? Thanks.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Ilan, Any image you find online, unless you know for sure it’s not subject to copyright or is covered by an appropriate creative commons license should be assumed to be a copyrighted image. Regardless of whether it has any artistic value in your opinion, the law does not look to that as a criteria for copyright of images. Product images are covered by copyright and thus would need to be treated as such.

    If use of the image is for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research then there could be a strong Fair Use claim. Use of the product image from the manufacturers website may give a stronger claim than using an image someone else took.

    As for caching or hotlinking the image, that’s a different discussion. Copyright law does not speak to this, and does not take into consideration the back-end information of how the image is displayed on a site. That being said, there is significant discussion regarding the ethics of hotlinking. Furthermore, hotlinking uses the bandwidth of another site and is often frowned upon by hosting companies.

    Hope this helps.

    ~ Sara

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Marty, linking to an image does not involve copyright concerns on the part of the individual/business linking. If the image is violating copyright, it is a concern for the site that has it on its site. Simply linking to an image does not raise copyright infringement questions.

    It is possible that the copyright holder could ask you not to link to an image that is violating his/her/its copyright. But the simple act of linking would not create the necessary “use” sufficient to infringe a copyright holder’s right to exclusive use.

    ~ Sara

  • ilan lewin

    Sara,
    I actually remember reading something once about the google images case, I have to say I cannot guarantee that it is accurate but…
    I remember reading that when google images links to an image or resource on another webpage, it actually does not infringe copyrights, because it doesn’t really create/redistribute a COPY of the resource. Rather, it includes in an HTML file a textual link to the location of the resource. It is only in the client’s browser where the link text is interpreted and the resource is downloaded by the client browser. Google is only creating instructions for the browser for finding the image.

    If true, this means that anyone who hot-links to a resource, although less ‘moral’ in web standards, is actually at a better legal stance?

    It seems like quite a viable argument to me.

    I can only imagine a counter argument stating that the mere fact that you’ve taken the resource out of context infringes rights, however, again, how can you hold someone liable for simply distributing a link to a resource? 

    What can you say about this?

    BTW, My own case is different because I prefer to cache the images locally on my server to ensure availability, so I guess that this voids this argument for me.

    Thanks,
    Ilan

  • Stevetblume

    Sara, thanks for all of the good info. I am writing a book that I will self publish. In my book I am challenging the educational teaching of a major university as being scientifically incorrect.  They have written a chart depicting the teaching that I am challenging. I would like to place this chart in my book so I can challenge it.  They say they have a copyright on their entire site. Since this is in the category of education and science, am I in any legal danger for using the chart without their permission? It will be difficult to challenge their stance without showing the information they are promoting.
    Steve  

  • Roverberryorange

    Hi Sara,
    Thank you for this article! It was very informative and the comments/responses were informative as well. However, I was wondering about a particular case that I don’t think was mentioned. Who owns the copyright to images when they are taken with someone else’s camera/film? Is it the property of the person who’s materials are being used or the photographer? 
    Thanks!

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  • Bradnelson

    Hi Sara,
    I have a website where I display my sheet music that I’ve composed.  I make only a few hundred dollars a year from this effort.  I have a “musings” page where I occasionally write music-related thoughts.  One such page reported performances of some of my music in various countries.  To adorn the listings of 5 pieces performed in Canada, I did a google search for “images of Canada”.  I right-clicked a picture of Niagra Falls.  It had no copyright notice or warning, so I naively utilized it.  I certainly wasn’t selling the photo and was not selling music from this “musing” page …however, I suppose the copyright owner would claim my site is commercial.  I have no employees and make very little money.

    I was surprised to receive a demand for payment from Getty images for over $1000 dollars.  I cannot afford to pay their demand.  I immediately removed the photo.  What might happen if I don’t pay their claim of infringement?

  • Conductorjonz

    I recently bought a compilation cd and found the selling entity lifted a photo from my blog and is including it in print on their liner notes. What can or should i do?

    Is it worth pursuing?

  • http://twitter.com/SaraFHawkins Sara Hawkins

    The case you’re referring to is Perfect 10 v. Amazon 508 F.3d 1146 (9th Cir. 2007). (Sometimes referred to as Perfect 10 v. Google b/c both Amazon and Google were sued)

    In that case, the 9th Circuit Court of Appeals did not assess liability, partly due to this concept of hyperlinking. However, the court did not go as far as saying that hyperlinking is not copyright infringement. In fact, the court was mindful of what exactly Amazon and Google (both as search engines) and was careful to craft their decision so it wouldn’t be broadly applied to any and all hyperlinking.

    It is very different for a search engine to provide “in line” linking as compared to an individual running a website. If a web content provider chooses a specific image and provides an “in line” link seeking to avoid any claim of copyright infringement, that’s not the same argument as a search engine indexing millions of images.

    Currently, there are no major cases that address the copyright legalities of individual hotlinking vs. caching works. Often the crux of copyright comes down to the distribution rights of the copyright holder and both hotlinking and caching would run up against that right. Perfect 10 may be persuasive, but a court would definitely look at the context of the hotlinking.

    Also, as you mentioned, there are some ethical concerns with hotlinking.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Steve, this is a question you should specifically discuss with a copyright attorney before publishing your book. There may be a Fair Use argument, but given that you are asking about a very specific set of facts, I am unable to provide a specific response.

    Any time a copyrighted work is used, there is a possibility of copyright infringement. Fair Use may be a possible defense, but you should talk to someone about its relative strength and what, potential, liability you may have. In addition, it would be important to discuss the costs of defending against a copyright infringement claim, should one be raised. Fair Use is a defense, decided by a court. It is not something you raise and the copyright holder just goes away. 

  • http://twitter.com/SaraFHawkins Sara Hawkins

    A copyright, barring some type of prior written agreeemnt or post copyright assignment, is automaticallly given to the creator of a work. That would mean that the person who takes the photo is the copyright holder, regardless of whose material and/or equipment is used.

    This is one reason many professional photographers will not let anyone use their equipment, nor will they take a photo with someone else’s camera. 

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Brad, I’m sorry to hear that you’ve experienced a demand notice from Getty Images for using an image they claim license to. Rather than me write a whole dissertation about Getty Images and their demand letters, you should do a search for “Getty Images demand letter”. You’ll have plenty to read, I promise.

    This also illustrates the importance of not using images found on the internet. I have clients who do this and it’s often a very sticky situation when the copyright holder asserts their rights.

    Copyright notices are not required, making it very difficult to determine what is and is not subject to a copyright. Any use of a copyrighted imaged is potentially infringing, regardless of whether the infringing use is for profit or on a commercial site. Simply using a copyrighted image could give rise to infringement and any damages associated.

    Many people believe that because they don’t sell or make money off of an image’s use that there should be no damages. Unfortunately, that’s not how damages work. Of course if someone makes money off of another person’s work, there are monies to be recouped. However, the simple act of copyright infringement may give rise to imposing monetary damages.

    Sorry to hear about your run-in with Getty Images. However, reading a few sites will give you some insight into what others have experienced after finding themselves in a similar situation.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @8c8165cf304b9d3694fc5eeadc958659:disqus Contact a Copyright litigation attorney to find out how to best proceed. To sue you may need to register the image and there are strict time limitations for doing that. You may not need to actually file suit, but knowing your options to best protect your copyright is important to making the best decision for you.

    Best of luck, Sara

  • Stevetblume

    Great. I will do that. Thanks!

  • Nic

    Sara, thank you for this very useful blog. I have a question. Some years ago, I downloaded randomly some pictures of very simple, common, everyday objects, such as vegetables, tools, pets, etc., without keeping track of the URL and/or checking if they were copyright protected. I used them as stimuli for a scientific neuroscience experiment. Now I would like to publish those results. Apart from the graphs and tables, summarizing the obtained results I also would like to include some (example) images in the publication; this to inform the reader about the nature of the stimuli that were used to acquire the data. Although the pictures do look very banal and not artlike at all, I do not wish to run into trouble for using them. Any advise? Thanks!

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @disqus_syYd7wr6bj:disqus if you’re at a university/college talk to the counsel’s office. There could be a very strong Fair Use argument. Naturally you would want to show the images used, that would only give more credibility to your article. Even though the images are banal if they are subject to copyright it could pose some problems for you and you’ll want to be prepared if there were to be any challenge. Also, if you intend to have your work published in scientific journals you’ll want to assure them of your right to use what could be copyrighted images.

    Hope this helps.

    ~ Sara

  • Nic

    Thank you very much, Sara. I will follow your advice and try to figure out if the university has an office handling those kinds of issues. I was also wondering who would be sued, when in a case like this, worse comes to worst and a lawsuit follows. Would it be the first author on the research paper, the senior researcher (usually the last author on a research paper), or the university/universities the authors are affiliated with? Would it make a difference if the institute is located in the US or in Europe? Again, I thank you for the free advice. I hope those Q & A make your blog even more interesting for future visitors.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @disqus_syYd7wr6bj:disqus Just to clarify, not offering legal advice. Just providing helpful legal info. No attorney/client relationship is implied or created. (sorry, had to do the disclaimer to make sure everyone knows)

    It would matter where the institute is located because it would affect the likelihood of suit. As for who would be sued? Everyone! As a copyright holder I’d sue anyone and everyone, especially someone who had deep pockets. That doesn’t mean everyone who is sued would be liable because there may not be “Joint and Several Liability” when it comes to the infringement. Nonetheless, just being named in a lawsuit is time and potentially money most people don’t have.

  • Crystal

    I am costume designer/ seamstress.  There a lots of professional shots of things I have made readily available online in various news stories/ fashion pages. Do I need to get permission to post photos of my own work on facebook if the photo was taken by someone else?

  • guest

    What if you search images in google using a single word or phrase such as”love”, then click on and download the “full size image” to use as part of a customizable item on a t-shirt or business card making website? The image may be cropped or text or other images overlayed onto it. Is there infringement here? It would be for personal use and not resale or advertisement.

  • http://www.techgyd.com/ TechGYD.COM

    Hello There !
    I am quite new blogger and I’ve used many images on my website without giving copyright. Can I just mention on Privacy Policy Page of my website that We don’t have copyright over images we are using ? Is there any simple way ?

  • Nic

     Thank you very much!

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @03861a888d60498badea166c7f456bf4:disqus If someone else took the photo they will own the copyright unless a prior agreement was signed in which the photographer was hired to shoot images as a “Work For Hire”. All “Work For Hire” agreements must be in writing and signed prior to the work beginning. Once the work that may be subject to copyright has commenced a license or transfer agreement would need to be executed to give someone other than the photographer any rights to the image.

    Unfortunately, many people hire photographers to shoot their work but do not enter into a “Work For Hire” agreement prior. As such, there are times when photographs of ones work are under copyright by a person other than the creator of the object being photographed.

    It can get very complex, especially when a useful article such as clothing is being photographed. Useful articles are not subject to copyright, as you likely know. However, photographs of them most likely are.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Whether for personal or commercial use, downloading a copyrighted image for use is likely to be copyright infringement. There may be a Fair Use argument, but as I’ve stated prior Fair Use is a defense to copyright infringement. As such, there must be copyright infringement.

    It is never a good idea to download and use any image found through a search on any browser. Regardless of how many words are used in the search, the likelihood of using a copyrighted image is high.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @Sorbsaha:disqus Thank you for reading and commenting. Providing a statement such as one you mentioned will not absolve you of any liability for copyright infringement that may exist. Copyright infringement does not require the infringing use to claim copyright. Instead, any unauthorized use of a copyrighted work is an infringing use which may bring about liability to the user.

    Unfortunately, there is no simple way to disclaim any potentially infringing use of a copyrighted work. Depending on the use, there may be a claim of Fair Use but even then that would entail a court determination if there were a dispute.

    Sara

  • http://www.techgyd.com/ TechGYD.COM

    Means, I need to edit all of my post and give credit to images by search on Google Image from the main source ?
    Ok.
    Lets say, I am having 2-3 images on my article, Can I mention put a single like at the bottom of post which is giving them credit ? like, at the bottom, Image Source : Amazon, Flickr, Pinterest ?

  • Desertman35

    I was wondering if it is ok to save an image to a CD, hard drive just to view on your computer. Not to repost but to save and just view for your own pleasure. I have seen alot of images on Wikipedia I would like to save and just use for my personal use. Is this illegal as long as you do not repost them?

  • Desertman35

    I was wondering if it is ok to save an image to a CD, hard drive just to view on your computer. Not to repost but to save and just view for your own pleasure. I have seen alot of images on Wikipedia I would like to save and just use for my personal use. Is this illegal as long as you do not repost them?

  • Mark Pasay

    Hi Sara, what a great article. I apologize if this has already been answered in the comments but I am wanting to be sure I am not pushing the line too much here… when it comes to social sharing sites like FB, twitter, Pinterest etc… if I am strictly resharing images, video etc using the mechanisms built within those platforms (and not right clicking and saving media on my hard drive and then resharing as if I initiated it) should I be ok?

    Even though if while on Pinterest I repin an image that would give credit to whoever originally pinned it I have no way to know if that person originally pinned it with proper rights to the media. Am I asking my question clearly?

    Thanks again

    Mark

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @Sorbsaha:disqus If you were to cite a source it would need to be the copyright holder not the photo sharing site. For example, just citing Flickr or Pinterest does not credit the copyright holder (unless your image is a logo owned by the sharing site). Pinterest comes with a number of issues because there are times where the image linked to does not actually credit the copyright holder so there may need to be additional research if that is the case. With Flickr, you’d need to see how the copyright holder wants to be given attribution.

    Using Amazon as a source may present issues. Unless it is an image owned by Amazon, such as their own logo, they are using images under license or Fair Use. Amazon’s Fair Use does not extend to other’s use of images provided on their site.

    Finally, attribution does not absolve copyright infringement. You would need to evaluate each image to determine if the use is a permissible use under a license or if there would be a defense to infringement if it were raised or if it would qualify as a separate copyrightable image through a transformative or derivative work. 

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @google-5be92b7cfdfcd1fe32386daae657b7f3:disqus you are asking your question clearly. However, you’ve hit on the most significant issue with online photo sharing. Often it’s difficult to know the source of the original image if there is no watermark. For many images on pinterest they don’t link back to the original owner, making it that much more challenging to make sure they’re getting the luv from their image being posted.

    Facebook and Twitter are equally as difficult. And Tumblr is the grandaddy of all things copyright violation.

    The whole idea of online photo sharing has put the concept of copyright much more front and center. Most social platforms put the responsibility on the person sharing should there be a problem.

    Most people want to do the right thing and give credit where credit’s due, but that’s not always the case. I commend you for wanting to do the right thing and I’m sure that you’ll take the steps to make sure you’ve got the original source. It may take a little extra work, but knowing you’re doing the right thing is very worthwhile (and likely greatly appreciated by the person whose image you’re using).

    ~ Sara

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @d90ebb08ca642e228d64fb48cded9f1f:disqus there are different schools of thought on this because copyright law give the right of distribution to the copyright holder. Some believe that if they intended to make the work available for another to keep (as in download) then they may have chosen a different method of distribution.

    This is the question that many come up with when music copyright is discussed. While I’m talking about images in this article, the fact is that copyright law does not necessarily distinguish between types of work. The discussion of downloads and saving a work is at the heart of DRM (digital rights management) software and code used on musical-type works. If a work is purchased then there are rights that have to do with saving and making backup copies. But if you don’t purchase a copyrighted work, or obtain it under a license, the right to save it or use it is much more limited.

    A court may wonder why there is a need to save a work if it won’t be used for anything other than viewing for your own purposes.

    Wikipedia often uses images under Fair Use so those come with a copyright. There are, however, many images used on Wikipedia that are in the public domain. Those images are not governed by copyright law and are often considered “free”.

  • http://www.techgyd.com/ TechGYD.COM

    But there is nothing available which will help us in finding the real source. Can EXIF Data do help ?
    Sometimes, when I put articles  on Apple iTunes Store App, and use available screenshot of app there, I mention a bottom-line as “Image Source : Apple iTunes” with link to that “image file” at apple store. Is it okay  because I am not mentioning it as Image Source ?

    And, It will take my most of the time in searching the actual image source, if I will start doing that :-(

  • SA

    Thanks so much for the informative article.  I’d really appreciate your input regarding an issue that we have recently come up against.  About a month ago, we started up a small business and to kick off the grand opening, we hosted a charity event at our place of business with various contests.  For one of the contests, the person doing our website (a friend doing us a favor) grabbed an image off of the internet and posted it on our business website with the contest rules.  Now, we received a letter from what seems to be a pretty large image company in Seattle, Washington with a settlement demand of almost $800.  We immediately had our friend remove the picture from our site once we knew that it was copyrighted.  We have definitely learned a lesson regarding making sure we do not use pictures from the internet, but as I mentioned, we are a small start-up company in no financial position to pay this fee.  Are we actually required to pay the demand?  Did they have to send us a warning or something first?  I really appreciate your thoughts on this.

  • Roberto

    I have found this site to be very useful — thanks to all.
    My question I founded and direct an online center for photographic studies.  Most of us are all volunteers.
    We are starting an online open and “free” journal on images and culture.  It is a research and theory publication that is open and free.  I am assuming that images used by authors to illustrate or demonstrate a concept, review, or critique will fall under the “fair use” law.  Am I correct?

    We are “not-profit-making” because the organization is virtual with no home/physical base.  The journal is educational, providing historical and critical analysis.

    Am I correct in thinking we fall under “fair use”?

  • Gabby c

    Does this apply with facebook as well? For example- when a facebook page post others photos for educational purposes?

  • Ted

    Hi Sara,

    Great article. However, I’m still unclear on Fair Use. I’m planning to create a website on coins. Most of these coins I cannot obtain to take pictures of myself, since many are very rare and expensive. Also, while I will not be making money on any of the pictures themselves, there will be a commercial element to the site by sending people to auctions for those coins.

    Also, I’ve visited at least 5 stock photos sites, and none have exact pictures of the coins I’m trying to display. Thus, I’m not sure how I would get pictures for these coins (Indian Head Pennies as an example) without using photos from the web. Any suggestions?

  • Chickfilamama

    Hi Sara,

    It’s one of my passions to use photos from the internet to create pictures with scriptures on them. I was recently approached by someone requesting to use my scripture pics on their facebook page. I scoured other facebook pages to see if anyone was doing it correctly based on your article above and I came across the following page:

    https://www.facebook.com/photo.php?fbid=417639408292315&set=pb.194411017281823.-2207520000.1359861536&type=3&theater

    My aim is to use the original source logo as well as the logo of the facebook page I represent, just as it is done on the page mentioned in the link above.

    Is this the correct way to do that? Please advise.

  • Armando Calzadilla

    Sara I have a quick question. If i had a website and taking my own pictures of diffrent homes in my area and posting them on my site to give creative home ideas to others around the web, is that legal? I only ask since google street view already has detailed pictures of homes around the world for anyone to see.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @facebook-100005157606351:disqus If you are taking your own pictures you can do with them whatever you wish. Google street view cameras are able to take photos because the law regarding photos taken from a public space of something (or someone) in public are different.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @3975dff02cc6c151f6f95a13f1a79933:disqus unless you took the photos (and yes, taking a photo of a copyrighted picture and using the photo you took is likely violating US Copyright law) there are risks. If the image you’re using is copyrighted, adding text to the image likely is not sufficient to create a Derivative Work (a legal term defined by US Copyright law). If your client is presenting you with an image and you are adding the text you should be sure that the image is not violating copyright law as you may also be part of a copyright infringement suit. I can not provide specific legal advice. However, I can say that unless your work would be considered a Derivative Work then adding text to an otherwise copyrighted image and using that new image online may still be copyright infringement.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @401599fd9b1c8b7f48f4ba018dfe33a6:disqus it’s these types of situations where we see the necessity for a Fair Use exception. Of course not every numismatist would have individual access to rare coins. However, being able to visually identify them is critical to explaining them and educating the public. Many government sites have images of these coins because they are (or were) legal tender and often photographed (or drawn). The US Government does not assert copyright over images they take. You have to be careful on gov’t sites because they may use 3rd parties or contractors who do have copyright. But, for the most part US Gov’t sites are pretty good about designating copyright.

    If you were to use other images, there could be a good Fair Use claim. The commercial element would be part of the decision making but it would not immediately bar a Fair Use claim. If the coin is up for auction, check with the auction site/house as many of them permit use of the image to facilitate the auction. It’s not a cut and dried “yes” or “no” because there are multiple factors (image size, purpose, etc.) that determine if an infringing use is excepted due to Fair Use.

    As it is a very small community, it might be beneficial to contact the copyright holder of the image and ask if you can use it. In these situations, many are willing to offer use in exchange for some type of attribution.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @0d40b909965dcc89411b8f915cbeba36:disqus yes, copyright laws do apply to Facebook (and all other social networks). The Terms of Service of these sites are very clear that a user is to use images for which they have the copyright or the right to use. In reality, most of the images used on social network sites likely violate copyright laws. Of course, if there were ever a challenge to use of an image on a social network, Fair Use may be raised if appropriate.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @700c40fe258e677b11eb7e6639d4a26d:disqus I am unclear exactly whose images are to be used. If the people who took the photos are uploading them to the site then they can do that. If users can upload photos then there are potentially significant legal issue for which there may be Safe Harbor laws that apply.

    It would be in your best interest to speak to a Copyright lawyer in your area and ensure that exactly what you propose will not be problematic. You may not be looking at Fair Use but, instead, may have other legal concerns to address.

    As I can not offer specific advice regarding your exact situation, and it appears that as a site owner and curator there may be other legal concerns you’re better off spending a little money to get reassurance that you’re doing things properly and, if a problem does arise you have some legal leg to stand on.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    SA ah, the large image company cease and desist as well as demand for payment. Unauthorized use of a copyrighted image does come with risks. No, the copyright holder (or their authorized agent) does not need to send a warning first. Copyright infringement is an immediate cause of action and the act of infringement can not be undone by removing the image. It’s like unringing a bell. Impossible. The infringement occurred and the copyright holder’s rights can be raised pursuant to the US Copyright Act.

    Whether you should or should not pay it is not up to me. You may find others who have had this same experience if you do a search. Also, speaking with a lawyer might give you insight as well to any legal arguments you could raise.

    Many people (especially web designers) inadvertently grab copyrighted images. Depending on what type of contractual relationship you have with the designer, there may be a contract provision regarding indemnification for images they use and provide.

    I wish you the best.

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  • Ryan Murphy

    Whats the ruling on artist creations depicting celebrities?

  • frannie

    no idea if you are still active on this page, but I was wondering if this applies to drawn pictures found online by an artist as well….I am writing a masters thesis on illustrated stereotypes and I need illustrations to analyze…some images come from as long ago aas 1800 and others are from 2012. I am also defending my thesis in Sweden, so do the copyright laws apply there are is there a whole new set of laws to abide by?

  • Eman

    Thanks, Sarah , for the wonderful article.
    I just have one concern: now that I’m using a website like:freedigitalphotos.net , which is supposed to be offering royalty free images , provided that we mention the creator’s name of the image. Contributors (image creators) register on the site and post their images for free and for sale (bigger resolutions). Now my concern is : how would we make sure that the person posting the image is its real owner? I checked on the website and it said that it’s the user’s responsibility.
    In other words, is there a way to make sure that the one posting the picture on “royalty- free images websites” is the real owner of the image?

  • http://sarafhawkins.com/ Sara F. Hawkins

    @aa5757582776fc91653245c45457eb7e:disqus there are separate laws regarding the right of publicity that would govern using images of other people. Any time your photo/art/video includes anyone other than yourself, you would have to concern yourself with what rights that person has with regard to their being included. Ownership of a copyright does not speak to this issue.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @6088cbffb1cf6b395c41465949827169:disqus, yes, I still check out the comments. You would definitely need to concern yourself with the laws of Sweden regarding use of illustrations. In Sweden, copyright law most definitely covers illustration. Works for which the author/copyright holder is still alive would likely be under copyright and you would need to speak with someone at your university to determine if there is an equivalent to US Fair Use in Sweden. For an author/copyright holder who has been deceased less than 70 years, the work may still be under copyright, and again, talk to someone at your university. For works by authors who have been deceased more than 70 years, the work is likely not covered by copyright. However, again, this would be something you want to clarify.

    Best wishes to you!
    ~ Sara

  • http://sarafhawkins.com/ Sara F. Hawkins

    @disqus_sbk1tg3rMJ:disqus unfortunately, you’ve come upon the Catch-22 of user-generated photo content websites. The website will do everything it can to disclaim liability, as do most websites. The site you mentioned is even in the UK so that makes it a greater challenge if there is a legal challenge.

    The fact is that the website is unable to review each and every image uploaded and thus will not accept any liability if it were to be found that a user uploaded an image for which they did not own the copyright.

    There is no fool-proof way to know that an image on a “free photo” or “royalty free” website is, indeed, devoid of any third-party copyright claim. If this is of concern, it may be best to avoid these type of sites and use a website that will ensure you won’t be subject to liability by a 3rd party. These often come at a price, but it may be something to consider.

  • http://sarafhawkins.com/ Sara F. Hawkins

    MikeKN sorry for the delay in replying to your comment, I didn’t see it. So, to your question about the disclaimer and getting use. No, there is no way to be fully protected from a copyright infringement lawsuit. Having the disclaimer does nothing with regarding to copyright infringement. If anything it acknowledges that there is some level of likelihood that one or more of the images is, indeed, owned by someone else.

    There is precedent in the law (Perfect 10 v. Amazon 508 F.3d 1146 (9th Cir. 2007)) that use of thumbnail images, while copyright infringement, are permissible under Fair Use. I suggest you speak to someone knowledgeable about how to best use images for indexing/database that would be copyright compliant.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @Ben use of thumbnail images was discussed in Perfect 10 v. Amazon, a case which also involved Google. The 9th Circuit ruled that Google’s use of thumbnail photos in image search results was permissible Fair Use.

  • Garth Woodworth

    Hi Sara, I ‘m writing letters for people to sign on political issues, and I use images in the body of the letters. I post images of the signed letters online (with permission from the signers), and the image is included in a copy of the letter which is at the top of the comments. Is this ‘fair use’?

  • Builder

    Question: In my previous proffession, I was a custom home builder. I created a “catalog” that listed every option that could ever be built into a home. To enhance it’s appearance, I grabbed hundreds of photos from Google and added them to the catalog. This helped my clients design their home with me. I am now out of the home construction business, but would like to sell my catalog on the internet. Would Fair Use (or some other legal measure) allow me to sell it? Do I need to promote it as a scholarly work or somesort of commentary? Should my website be hosted in a country that doesn’t respect copywrite laws? Would I be personally responsible for any lawsuits/fines if this is sold through my LLC?

  • Claret

    I sometimes trace over photographic images found online to create dot to dot pictures for my book. Is this infringing a copyright ?

  • Claret

    I sometimes trace over photographic images found online to create dot to dot pictures for my book. Is this infringing a copyright ?

  • Michael Dunlap

    Hello Sara,

    I run a basketball website (hoopshabit.com) that deals with the NBA. It’s remarkably difficult to avoid Getty Images or AP Photos for us. We fall under the “news” category and definitely under the criticism area as far as fair use. The problem is, we aren’t critiquing the photos. The pictures are there to improve the piece and give the reader something else to enjoy. Would my site be relatively safe from copyright issues?

  • Michael Dunlap

    Hello Sara,

    I run a basketball website (hoopshabit.com) that deals with the NBA. It’s remarkably difficult to avoid Getty Images or AP Photos for us. We fall under the “news” category and definitely under the criticism area as far as fair use. The problem is, we aren’t critiquing the photos. The pictures are there to improve the piece and give the reader something else to enjoy. Would my site be relatively safe from copyright issues?

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @2d4e512f7d9883eff7cc010ed87d471e:disqus Fair Use incorporates the determination that there is copyright infringement, but the infringement is excused due to the legal argument of Fair Use. What you are describing, creating a derivative work, is less likely to meet Fair Use requirements because it is purely for your commercial gain and there is a very weak argument that the underlying copyright should yield to the subsequent use of the image.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @b77e030da2f18808248477c34156e418:disqus use of copyrighted images in your work is likely an infringing use. While commercial use is but one of the criteria a court would look at, it is one that often gets heavily weighted by some courts. It would be best to consult an attorney prior to publishing your work as one of the consequences could be, in addition to hefty legal fee, disgorgement of any profit you make on your book.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @9dd7b60a82e195f7a04ee526be0d40c9:disqus this is a “maybe” situation since a determination of Fair Use would depend on the image used and the purpose of the image, as well as how much of the original image is used. With millions of public domain images, you should consider finding a source for your image(s) that are free of copyright.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @0d40b909965dcc89411b8f915cbeba36:disqus Copyright law does, indeed, apply to Facebook. This is where technology gets interwoven into copyright law because if the image is shared via the FB functionality then that share isn’t evaluated in the same manner as if the image is uploaded separately by another user. So long as the copyright holder uploads it to FB, they are granting other FB users the right to share it within the FB functionality. There would be no infringement if the image is shared using the FB share function.

    What they are not permitting is for other FB users to grab the image and repost it as their own image. If the image is saved and then uploaded by another user, not only is there likely a Facebook TOS violation but there is likely also a copyright infringement issue. Whether Fair Use would apply is a case by case determination using the standard criteria set forth in the article.

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  • http://twitter.com/SaraFHawkins Sara Hawkins

    @michaeldunlap:disqus using photos from an image service can be a very costly test of “Fair Use”. Using copyrighted images from sporting events outside of very clear cut Fair Use situations is something that impedes many in situations similar to yours. Almost all major media outlets have a license to use these images, and don’t rely on Fair Use.

    The Fair Use argument would not be an easy one for a commercial site using copyrighted images solely to enhance the editorial content.

  • dhruba

    thanks sara
    i have made a song which i want to publish through internet with a visual presentation. for the presentation, i have collected many numbers of images from google. while opening the image, there is written this image may subjected to copy right protection. with the website link, some photographs are written copy right protected and some are not. i approached many of them but did not get any reply. can i use those images. please suggest

    thanks again
    dhruba

  • http://twitter.com/SaraFHawkins Sara Hawkins

    dhruba Any unauthorized use of a copyrighted image is infringement. The unauthorized use of a copyrighted image may be permissible if it meet the criteria for Fair Use. If it does not meet the Fair Use exception, one who infringes the copyright of another may be liable for damages related to copyright infringement as well as having their work removed through the DMCA Takedown process.

    I can not advise you as to whether your use would fall under Fair Use. If you are concerned, speak to appropriate legal counsel. Clearly, you are aware that certain photos are designated a copyrighted and have contacted the copyright holder. Without their permission, you would need some exception to copyright law to use their images.

  • dhrubajyoti ozah

    Thanks Sara,

    I have collected many images where the original creator is not clearly found. also i have collected many of these from facebook.com where nothing about copy right has been mentioned in the image. Can i use those images and also i want to know facebook is a public domain or not

    dhruba

  • Eva Rajput

    Hi Sara,

    If we are using images from Pinterest or Google Images and we give Image Source?

    Usually in Pinterest only the image is uploaded without the website’s name. How do I go about it when I post images on my page?

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @2ea0121b1cde4ea2e630e04d26dcfa04:disqus images used on Facebook may or may not be public domain images. Unfortunately, if there is no copyright management information (for example a “circle c” or some type of name) it’s very difficult to know to whom the copyright may belong. There are ways to search and compare images in an attempt to determine who the owner may be, but it is very time consuming and not always accurage.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @481edfb9756effcf77f0f389f65ec211:disqus any republication of a copyrighted image is a potential infringement of the copyright holder’s rights. Images posted to Pinterest and Google may or may not be subject to copyright. If they are, posting copyrighted images on your blog may be an infringement of the copyright holder’s rights. Adding the image source does not make the publication permissible.

  • kjy112

    Great post Sara. I was wondering what’s your thoughts on Getty images’ settlement demand letters?

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  • http://twitter.com/SaraFHawkins Sara Hawkins

    @facebook-1196582522:disqus Whether willfully or inadvertent, if a copyright infringement has been made known, the copyright holder (or someone acting on his/her behalf) has the right to demand compensation within the scope of the law. If it is unclear that the party attempting collection on behalf of the copyright holder is, indeed, lawfully permitted to collect on behalf of the copyright holder, clarification should be made.

    I can not speak directly to the demand letters you reference, as it wouldn’t be prudent without sufficient facts.

  • Tanya

    Thank you for such a wonderfully thorough post. It does add some clarity but it’s still murky waters for me. Some friends and I run a blog where we do analysis of pop culture. We mostly talk about media – movies, TV, games, books, etc – and we analyze and discuss the content and its social influence/importance. Sometimes we’ll use a still from a TV show or cover of a book we’re discussing. Would this then fall under fair use? Where possible, we also still link to the source of the image & credit the studio or creator. We have absolutely no revenue on the site.

  • Roberto Muffoletto

    It was suggested to me that if you do a “screen copy” of a Google search result and use the “screen grab” image, you are publishing the Google image, search result, not the original image. For example, image search on the word “flood” will produce a screen of flood images. If you select and “copy” the search result, use that on your web site, blog, etc. Is that still a copyright issue? You are not copying the image, but the search result that appears on your monitor.

    Interesting possibilities.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @a73e1499cafb209c0fa81506920a4217:disqus unfortunately, I can’t give legal advice. It might be in your best interest to speak with a copyright lawyer and get an opinion letter. That way if there is ever a problem you’ll have a solid legal opinion to back you.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @robertomuffoletto:disqus reproducing/redistribution/copying a copyrighted work, without permission, are all copyright infringement. The information you were provided was incorrect. Doing a “screen grab” may play heavily when it comes to a Fair Use, but it does not remove that a copyrighted work was copied.

    The copyright exists for the underlying image, not it how it is displayed on the computer. The search result is a display of the copyrighted image and does not diminish any rights the copyright holder has in the distribution of their work.

  • Mohit Verma

    Can i know the particular image is copyright or not ? so that i choose accordingly.

  • GARealtor

    I just received a demand letter from Getty Images for $1,175 for a “copyright infringement” on my website plus the demand to take down the phot immediately. Turns out what they were referring to was a “cloud” image that was mashed-up to another house image in a “free” internet web template. Their image identifier web-crawler software had to search hard for this one! I certainly would never have known a copyright infrigement was in play. I did take down the image immediately but I’m not paying the fine. What would you do?

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  • http://camillagejl.com/ Camilla Gejl Olsen

    Can you please answer these few questions for me?
    – With “Public domains”, do you mean such as news sites or?
    – How is the copyright law about celebrities/politicians? Can I use pictures of them for free, or only from special sites – or not at all? Can it be fair use about people?
    – I understand most of the “beautifying your page”-part, but if I criticise/comment on a celebrity, and post a picture of them – would that be fair use?
    – If doing a review on a film/series, is it okay to post a screenshot?
    – How about fanart/costumes of pre-created characters? (Superheroes or whatever else)

    Hope you will find the way to answer me, I’m still a bit confused – but it was an awesome article!

  • Ilens

    First of all, thank you for all the great info. My question is this: I understand that if my picture is taken in a public place it can be posted, printed, etc., without my permission. What I can’t find an answer to is whether that image can be sold without my permission. I would really appreciate a response or where I can go to find the answer. Thanks in advance.

  • Rob

    Excellent resource you provide here, Sara! My son has a service enterprise with a section containing detailed information about certain problem scenarios for reference purposes, and has used pictures obtained from photobucket.com to supplement his narratives. There are no indications of copyright within the image itself or footnoted to the image, nor is there any information about who the original author is or any other bits of information that point to the party who purportedly holds the copyright who can be contacted. I have found the exact same image replicated on other unrelated free websites, neither having copyright or author information associated with the image. So my question is this: receiving a letter from a company alleging to represent the image “owner” and demanding exorbitant compensation (that would usually be classified as extortion) seems to be an abuse of the intent of 17 USC Section 106. The subject to which the image relates would not otherwise have any commercial value, artistic or public interest. If anything, the narrative “makes the image” and not the other way around! I am more than willing to pay what seems to be market rate for a specific use license shown in the major stock photo sites and that is the most I will counter offer these collection agencies – and only after they have provided sufficient proof that they are legally authorized to represent the image owner. Thoughts?

  • Alison Chan

    Hi Sara, is it that I take pictures from social media platforms such as instagram and lookbook and put on my blog then cite it back to instagram and lookbook will be fine? Those pictures are post by the original author to those platform. Is it considering violating laws?

    Thank you.

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  • http://www.facebook.com/christopher.deeble Christopher Deeble

    So if I’ve found an image that I’d like to use how can I find out where I can buy the right to use it? Google Images works great for fnding copies of images but seems to be silent on the copyright issue.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @d7642a929f70a0c81c8d90eed005fc36:disqus if an image has Copyright Management Data on it (a watermark with the name or “circle c” with date and name) it’s easy, but when there is no information you need to do more work to ascertain the owner.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @garealtor:disqus Getty Images manages many images. If you want to learn more about these requests do a search and you will find a multitude of websites that address this issue specifically. I can not advise what to do, as I am not your lawyer nor am I offering legal advice.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Camilla Gejl Olsen I will answer the questions below:

    – With “Public domains”, do you mean such as news sites or? – Public Domain is a legal term that mean there is no copyright. This may be done intentionally where the owner places the work into the Public Domain, basically giving up their copyright. It can also happen when the copyright term on a work expires. It has nothing to do with where the work is found. The word “domain” has nothing to do with the internet and should not be confused with the term “domain” as it applies to the URL of a website.

    – How is the copyright law about celebrities/politicians? Can I use pictures of them for free, or only from special sites – or not at all? Can it be fair use about people? – Copyright law protects an original work of authorship, it does not protect people or buildings or the things that are contained in the work. People can not be copyrighted. Many states do recognize the right of publicity and that is a separate body of law that governs how an image or likeness of a live person is used. An individual has the right to control how the market themselves. Using photos of people involves other concerns. News organizations using photos of celebrities/politicians for news reporting are dealing with 2 separate laws: (1) copyright of the image itself and (2) rights of publicity.

    – I understand most of the “beautifying your page”-part, but if I criticise/comment on a celebrity, and post a picture of them – would that be fair use? – Possibly, but I can not say specifically. Many of the services that provide photos of celebrities police the use of their images quite vigorously. If your use is Fair Use you’d still need to challenge their assertion that it is not.

    – If doing a review on a film/series, is it okay to post a screenshot? Most likely. Many movie studios release images for media use. Book publishers also often release images for media use as well.

    – How about fanart/costumes of pre-created characters? (Superheroes or whatever else) – Almost all fan art and fan fiction are copyright violations. However, many companies that own the rights to the copyrighted characters/designs do not pursue copyright infringement cases unless there is an attempt to profit/market the art/fic. This is a very unique area of copyright because of the relationship between the creators and the fans.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @9d1a7a9dee2772081ffc9e483e055794:disqus the right to take a person’s photo in public is a well-settled principle of privacy laws. You, the individual in the photo, may have rights of publicity and the use of your image for marketing purposes that is a different right from the copyright the photographer has. In the scenario you propose, taking a person’s photo in public, the photographer would have the right to determine if the photo is sold and woud not need permission from the individual(s) who is in the photo. Under copyright law, the copyright holder has the exclusive right of distribution, which would include sale.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @8148d29d4e07eb9ac13c24d6bad3ab9d:disqus regardless of whether the image any any artistic value, the copyright holder or their licensee or agent has the exclusive right to display/distribute the image. They can ask for compensation, and if they don’t receive it may be able to seek other means of collection. Yes, it would be important to have proof that the person/organization seeking to collect on a copyright infringement does, indeed, own the copyright or has the legal right to collect on behalf of the copyright holder.

    The damages sought for a copyright infringement are often something that an allegedly infringing user of a copyrighted image disagrees with. However, the copyright holder has the right to seek damages. Unless ordered by a court, there is always the possibility to negotiate and if one (or either) party doesn’t agree there are other ways to pursue copyright infringement besides a demand letter.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @alisonchan:disqus any unauthorized use of a copyright image is an infringement. Using photos, without permission, from social media sites, which are likely covered by copyright, is likely an infringing use. Attribution does not mitigate or alleviate the copyright violation.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @facebook-100000926833219:disqus there are services, such as Tin Eye, that help to identify uses of an image. Often, these imagine finding services will provide a copy of the image that has the copyright management information or link to a site where there is information about the owner. It can be challenging to find the owner of an image when there is no copyright information on the image. There are sites like Digimarc and Irfanview that may be able to read the encoded data, but there is no guarantee that information hasn’t been stripped or altered. However, it’s at least a possible way to identify someone who may have rights. But, if you are unable to clearly identify the copyright holder there are risks in proceeding with authorization from someone who may not have the authority.

  • Jerry Bierens

    I use photobucket.com and am quite sure that the images posted there are free from copyright infringement. If you know any different, I’d be interrested to know.

  • http://www.imaginaryplanet.net/weblogs/idiotprogrammer/ Robert Nagle

    Excuse me, the recipes themselves can’t be copyrighted — they are merely instructions. But the verbiage associated with the recipe can be copyrighted…So all you need to do is write the instructions in your own words.

  • http://www.imaginaryplanet.net/weblogs/idiotprogrammer/ Robert Nagle

    I wanted to add a few extra thoughts. First, just because something is labeled Creative Commons doesn’t mean that you can prove it later on. In fact, things are often mistakenly labeled as CC. I would recommend making a screenshot of the page where you found the CC license listed and keep it for your records (in case you are threatened). Second, the image might be creative commons, but you might still need to get a model release if the person can be identified. Third, you should try to use wikipedia or wikicommons images when possible. They have strict standards about metadata, licensing and provenance. Fourth, when I ran a medium traffic news site, I generally tried to use CC images, but took wild images off the web on occasion (in reduced size). The thinking was that the content was fairly fleeting and if the copyright owner filed a notice, we would immediately take it down. (Getty & UPI images would be different of course). Honestly, most people (and even businesses) don’t even care if you use an image or two .. as long as it isn’t used in a tasteless or controversial way. The question becomes… is it worth the hassle to use those kinds of images and then have to deal with the consequences when the rare individual doesn’t like it? If you are thinking of creating permanent works for sale (graphics, music, books), then it’s worth your effort to pay for licensed copies, so you don’t have to prevent these legal entanglements later on and pay excessive usage fees later. Finally, it’s worth noting that (according to Bridgeman vs. Corel) you can reproduce ANY photograph of a painting in the public domain as long as it is a slavish reproduction of the original. (Not that it’s easy to determine that, but generally works created before 1900 are safe)…

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @idiotprogrammer:disqus There was no implication recipes are automatically copyrighted, as there are two parts to a recipe (ingredient list and instructions/direction) one of which (ingredient list) is not subject to copyright and the other (instructions/directions) which may or may not, depending on if if meets the test for being an original work of authorship.

    Per the Copyright Act, lists are not copyrightable; which includes ingredient lists. Directions for a recipe may be copyrightable but only if they rise to the level of an “original work of authorship”. Not all instructions/directions are sufficiently original to be an “original work of authorship” and thus are not copyrightable.

  • Roberto

    Hi Sara, sorry I may not have been clear before when I asked about screen grabs from a Google search.

    I am interested in knowing if the “results” of a Google image search that is copied, a screen copy — not one image but most of the search results, showing that it was a Google search result — falls under copyright . Does Google own the search result?

    To contact each copyright holder of (say) 20 images on the search page would be hard, if not almost impossible. The caption would note that the “images” were a result of a Google image search.

    The “search result image” would be placed in an online journal.
    I searched my name.

    Thanks … roberto

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  • http://twitter.com/SaraFHawkins Sara Hawkins

    @700c40fe258e677b11eb7e6639d4a26d:disqus The results of a search may carry with it other legal ramifications of use, but as for copyright there could be an argument that a browser search result is the equivalent of a list, even if the resultant list was images instead of just words, which aren’t subject to copyright. If the images are small enough and the copyright would extend to the search results there is a strong likelihood its use could fall under Fair Use.

  • mollycoughlin

    Hello, when writing Facebook posts on a business Facebook page that link to interesting articles, posts, etc. on outside websites, is it fair use to publish a photo from said article/post?

  • thoov

    Hi Sara

    My question is about an image that was used in a TV screen in a room scene photo taken for commercial use (print ads, web advertising). If the image appears in the TV screen ina room scene will that negate the copyright because it appeared as a TV screen in a room shot. And my other question is if photo was used before a copyright was established was it legal before the the copyright. And if a lawyer is demanding a cash settlement how much validity do they have in making a cash demand?

    Thanks
    TRH

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @facebook-8600450:disqus if you’re writing a post on FB and linking to an article the FB preview feature will likely pull an image (although sometimes it doesn’t). At this time, those thumbnail images pulled in preview are covered by Fair Use (Perfect 10 v. Google).

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @bdd947045d68b49e684230368fb1ba58:disqus Copyright is established at the time of creation, so it’s nearly impossible for an image to be used before copyright has been established. If a copyright exists and there was an infringing use, the copyright holder has the right to hire legal counsel to request compensation for use.

    As for the question about using an image on a TV screen in that is incorporated into a larger image, as with most legal questions the answer would be “it depends”. If it’s small it may be treated similar to thumbnail images and permitted. If it’s integral to the image it may be an infringing use, but covered by Fair Use. Unfortunately, Fair Use is a very case-specific determination so it’s not always easy to determine if there are not clear uses that would fit the 4-part test.

  • http://www.facebook.com/izilin Irina Zil

    Hello Sara, thank you very much for the wonderful article. Currently I am trying to convince my bank to print an image off the Internet on my bank card. There is a service for printing custom images on new bank cards (and there are some rules for that). Is it legal to use images off Internet for personal purposes, for example print it on a piece of paper and hang it on a wall at home, or print it on a t-shirt? Do I have to ask for authors permission even if its just personal use for a case like bank card?

  • http://twitter.com/SmoothReEntry Smooth ReEntry

    Great article!

    A great area I struggle with are celebrities.

    I paparazzi type photo is copyrighted and should not be reproduced, obviously.

    But what about republishing pictures of celebrities that appear to be official publicity shots from a show? Common sense says they want the pictures republished for the purposes of PR, especially when accompanies by positive critiques, which qualifies as fair use. Yet those pictures are not found in creative commons sites and are marked as copyrighted via Google Image search.

    The practical way I am interpreting this is that they retain ownership of the photo and can ask that it be removed. However common sense says that they would like small bloggers like me to use it.

    Am I off base here?

  • Gelly McAuliffe-Bunker

    Thanks for a great article, Sara. If I save an image, then add text using Paint, before uploading to Facebook, could I still be liable if the image is copyrighted, as I have transformed the image? If my FB Page is not commercial, is that considered?

  • Nathan

    Hi Sara, Im starting a blog for my etsy shop that sells jewellery, and i wanted to create outfits that people could wear my jewellery with. So, if i have a collection of images, in particular a bottle of CHANEL nail polish, can i include this as part of a collage for the outfit? Or is it an infringement? Im not really sure if it falls under educating, criticising or something else. It would be much appreciated if i could have your insight on this matter. ( I thought it would fall under comment/criticising)
    Thanks,
    Nathan

    blog: misternsjewellery.blogspot.com.au

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  • maggie

    What is the situation with an artist who is doing collage and may want to incorporate well known images eg Obama, film star, Hollywood lettering sign into the work?

  • Kevin

    Dear Sara, I’m setting up a website that helps sellers to sell their branded bags from italy and US. However, in order to feature the bags, i’ve snipped and attached photos from the official website to provide the dimensions, codes and appearance. This is to provide more information for the buyers. Am i infringing on copyrights? Please help……

  • Jen

    Sara~ While in school, I created an image to represent my class in a college bowl and made shirts for my fellow classmates as well as gave them shirts at graduation with the same image. I was recently sent something from the school with my image on it and the image now appears on the schools website, and no one ever bothered to even ask if it was okay to use my image….is there anything that I can do? Thank you for your time. Jen

  • Jen

    I created an image about 6 years ago to use during college at our college bowl and placed the image on shirts for my classmates to wear. I also made them shirts with the same image at graduation the following year to give as presents. I recently received something in the mail from the school and my image appeared in the mailing. I then checked the school’s website and the image is there as well. No one ever contacted me to even ask if I cared if they used the image….and it’s not like they can’t find me as they mail me something every year for the current class graduation. I did not ever formally register the image, should I do so at this point? Is there anything that I can do?

  • Gary Miller

    Sara, I am working on a video to be posted on an academic and clearly educational website. During the video, there are two images that show up for a few seconds (to break up the camera shot on the speaker). These images are from published articles from a major scientific journal. I have requested permission (told it will take up to 2 months), but could this fall under fair use? One of these images lives on the original author’s websites, both manuscripts are freely available through PubMed Central.

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  • Anonymous

    Hi, so I have a question. I’m writing a story on a website and I want to create a story banner for it. I have found a picture of a girl to add to the banner, but I’m wondering if it’ll be considered copyright. No money is being made from the work, it’s just something to grab the reader’s attention. I have provided the link, photographer, and the name of the girl in the picture. The website itself also says “No money is being made from this work. No copyright infringement is intended.” I have asked permission from the author of the photo as well. I’m still waiting for a reply, but I’m still a bit scared of copyright infringement. The story isn’t really even being published, to be honest- its just a story people can read. The story itself doesn’t involve the image at all- the image is just showing what the girl in the story is supposed to look like. Is this okay if the author says I can use it?

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  • http://twitter.com/Bourbontaker James Watts

    It’s stupid how there is all this legislation on copyright images! We live in the 21st century. Why can’t people just grow up, man up and share!

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  • Want To Know

    What about images that are shared on the internet and you do not know who created it or owns the right? Can you share interesting images (example: rare nature images).

  • moses

    Hello Sara,
    i was wondering if you can point me in the right direction in this situation.

    I worked as part time graphic design student for a previous employer who
    recently called me and told me that an X company is suing him for an image that
    was used on his website without permission from the X company. He sent me the
    image, which by that time I did worked and placed on his website after he
    reviewed and approved that process.

    Several times I recommended him that is necessary to buy images but he wouldn’t
    want to do that kind of investment which is one of the reasons why I resigned
    the positions.

    During the call he told me that I am in serious trouble and threatened to sue
    me. Can you advise me and tell me if should seek for legal here.

    Thank you

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  • resqdvrchik

    Sara – If there is a photo used widely on many websites adn google search – without acknowledgement of copyright or origin and I am using it to educate the public about a non profit resouce would I be safe? I just can’t seem to find anything that gives copyright information and many of them thought the same image are cropped in different ways.

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  • http://twitter.com/SaraFHawkins Sara Hawkins

    @facebook-1737034495:disqus if you had written permission for the bank to use a copyrighted image the bank may agree to allow its use on your bank card. Due to copyright laws, if the bank used the image on a card it issues it is the bank that could be liable for infringement.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @twitter-1277845849:disqus celebrity images are usually licensed, but certain uses may still be covered by Fair Use. If the use is for one of the criteria used to determine Fair Use then it’s possible you’d be able to survive a claim of infringement. You’d just have to be willing to deal with arguing your Fair Use claim or defending an infringement suit if the copyright holder chose to bring one.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @google-7db46b7051f9c571d994f40b5331604b:disqus adding text to an image may or may not make it a transformative work sufficiently creating a new work that may be able to be used. If you’re talking about uploading a photo that is used within a meme there may not be a strong Fair Use claim regardless of the commercial nature of the Facebook page.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @disqus_uDIXLROZJX:disqus there are both copyright and trademark issues raised in your question. Using another brand to promote your product likely does not offer much in the way of Fair Use. Copyright may be a lesser concern than the potential for trademark infringement or associated claims for dilution or diminishment.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Jen, if you created the image you likely hold the copyright to the image. You can contact the school to let them know the image is yours and what you’d like. If you’re not comfortable contact the school you should contact an attorney that can contact the school on your behalf.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Kevin, if your clients are the seller they may have permission to use images of the bags from the manufacturer. You would need to determine if the sellers have permission to use the images and if so then can they authorize your use to create a website. The strict legal interpretation may prohibit such cut/paste of copyrighted images, but the business relationship between the seller and manufacturer may permit the use. It’s something you’d likely need to research more. Keep in mind that depending on your relationship with the seller in creating the site, if the images are deemed to infringe a copyright you may be liable unless your legal agreement with the seller states otherwise.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Gary, posting works on academic and educational websites are not automatically covered by Fair Use. The specific work must be evaluated in terms of Fair Use. One thing a court would look at is the length of time a copyrighted work appears. While I can not advise you as to whether or not using 2 images is covered by Fair Use, you can go through the 4 criteria and determine how strongly they may or may not apply to your situation. If you don’t feel you’d be able to strongly defend yourself it may be best to wait the 2 months. In addition, depending on your relationship with the academic or educational institution, they may have legal counsel that could assist you. I know there are some educational institutions that do provide guidance with regard to these issues.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Use of any image found on the internet/search engine for which you can not identify the copyright holder poses the potential for either a DMCA takedown request, a cease & desist, a lawsuit, or any combination of these. Just because others are using an image w/o attribution or permission doesn’t mean that you’re free to use it either. The only way to determine if your use could be covered under Fair Use is to evaluate your use against the 4 criteria courts look at in copyright infringement Fair Use cases.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Moses, you should consider an appointment with a lawyer.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Any image shared on the internet for which you do not know the copyright information should not be further shared, without risk of copyright violation. There are numerous US Government website with beautiful images that are in the public domain that anyone shouldn’t need to use images of unknown origin.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    There are two concerns here (1) copyright of the image and (2) model release. Using an image of a person carries with it the need to obtain a release from the person to allow the use. Most good photographers will obtain a model release so they can then further license/sell their work.

    Making a story available on a website is publication as far as copyright is concern. And while you may not be making money by selling this story, there may be a commercial component to the website that would need to determined.

    If the image use would not be covered by the Fair Use test the infringing use would not likely be excused.

  • Peter

    Hi Sara – thanks for one of the most comprehensive fair use article I have found to date! I do have a question: I run a wedding website and while I am subscribed to a photo service, I’m looking to review some products without any affiliation. Can I use photos from another website.

    For example, can I create an article called Best Wedding Dresses of 2013 or Awesome Wedding Favors for your Wedding and use pictures from other sites that created the dresses for favors for review purposes?

  • Aura

    Hi how do I legally use a movie image for an iPhone app? Lets say I would like to use the movie poster for the movie Snow White for an iPhone app, how do I obtain permission? Please help. Thank you

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Peter, thanks for the kind words. Unfortunately, I can’t give you specific advice. What I can do is suggest you check out the four criteria and determine if your product reviews would be covered by them. Often manufacturers do not mind if legitimate reviewers use photos provided, but that is not always the case. Manufacturers are often unable to handle the requests for permission to use photos, but checking the website of the items for contact info or photo policy info never hurts.

    Best of luck to you!

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Aura, to obtain permission for use of an image from a movie for an app you will need to contact whomever is listed as the copyright holder. The information is likely in numerous places on the website if the movie has a site, or on the DVD/Blu-Ray box. Once you determine who owns the copyright, you can go to their website to find out how to contact their legal/licensing department.

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  • Vic

    I’m purchasing an photograph from a photographer to use on a packaging on a product i will be selling. My concern is the photo has multiple sponsors on the vehicle and rider. Do I have to get permission from every sponsor to use the photo?

  • crewzen

    very nuts and bolts info for us laymen . thanks!
    Jjust to clarify for my worry warts. if you use a competitor images to critique there boats for hire vs our boats. Is that not “fair use”? a caveat to that is the image with people in them. is distorting there faces better or worst?

  • http://twitter.com/SaraFHawkins Sara Hawkins

    Vic, photos with identifiable trademarks often pose additional problems. The copyright issue is one thing, which you appear to have covered. Trademark infringement is a separate issue you may need to clear, as well as the publicity rights of the individual(s) in the photo. Image containing people often need model releases, in addition to any potential copyright concerns that need to be considered.

  • http://twitter.com/SaraFHawkins Sara Hawkins

    As I just mentioned to Vic (below), images with people often need a model release. There are various exceptions, but for commercial purposes you should investigate whether a model release is necessary. In addition, as I mentioned below, if there are identifiable trademarks there are additional trademark law hurdles that must be cleared in addition to any copyright issues. Using a competitor’s image to compare/critique their service with relation to yours may be covered under fair use, but it’s not as clear cut since it’s solely for commercial purposes. It does happen, but there are more than just copyright issues at play.

  • crewzen

    Thanks for the info! the one thing that i still have a question on, is if you blur there face do you still need model releases? and when you say there are more at play……. I will add a link here for more precise imagery. And yes i understand you are not giving legal advise. I’m just looking for an informed opinion ;-) http://www.sailsandiego.com/how-we-differ-from-other-sailing-companies/

  • pora

    Thank you for the post…
    Im using internet photos and mix it with many effects to make my animation movie..

    its a combination of photos (in background)and painted elements in first plan..is it ok?or i need a permision?can i send it to festivals?

  • crewzen

    never mind looking at that page i sent you

  • http://twitter.com/SaraFHawkins Sara Hawkins

    @2c07fc9ec7f3d63c210fcba4242f89e7:disqus still images incorporated into another medium may or may not meet Fair Use exception guidelines. Each instance is a unique occurrence that may be permitted or may not. Unfortunately, there is not one clear answer because it depends on a number of factors for each still image as well as the transformative nature of your animated work.

    Many festivals have disclaimers about copyright and will assume you have any and all appropriate clearances to show the film. Festivals often do reserve the right to not show a film that has already been selected if that film is subject to litigation at the time the film would be shown at the festival.

    The concern you might have may reach beyond US Copyright law, especially if you intend to make your film available outside the US. Contacting a copyright entertainment lawyer might be in your best interest.

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  • nacho

    what happens if I make an oil painting on canvas from a picture or digital work, 3d render etc found in internet ? could I sell it?

  • Kelly

    Thanks for the article. I was wondering if the owner posts it on a non profit site and/or donates for sites such as Findagrave, does that impact the free use? Doesn’t the owner of the photo have to show damages from using their photo on another site and if it’s donated how can there be any damages?

  • Amber Rose

    A great article with so much useful information.

    My question is if someone gets photo from facebook, pinterest or google+ etc… then how he came to know that whether the picture is copyrighted or not? So this is the tricky part of this whole story.

    Most of the sites like bishots.com, thechive.com, cheezburger.com, imgur.com etc get photos from social media or from their users and publish it online. So which policy will be implemented here?

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  • Valan Kornhaus

    Question for you…On etsy there was a shop owner who had created a Banner using Disney princess images on it. They included this disclaimer in the listing:
    “Copyright info:This listing is for our time and creative design services spent creating your item. All copyrights and trademarks of the character images and clipart used, belong to their respective owners and are not being sold in this listing but provided to you free of charge. This item is not a licensed product and I do not claim ownership over the characters used.”

    Does this really mean anything??

  • http://sarafhawkins.com/ Sara F. Hawkins

    No, the disclaimer doesn’t mean anything. Even more disconcerting is the fact that the disclaimer says they’re actually giving away work that may be copyrighted or trademarked by another person/company. Copyright and trademark infringement aren’t excused b/c a disclaimer is used.

  • http://sarafhawkins.com/ Sara F. Hawkins

    While I have not read the TOS for these sites, the majority of photo-sharing sites have a provision in their TOS that the user agrees they are only posting images for which they have copyright. If someone does not take the photo themselves then they should know they likely don’t have any right to use/share/disseminate it. Copyright law will always trump a platform’s TOS.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Showing of damages is not required. Non-profit sites are required to follow the same laws as for-profit companies. Fair Use tests by a judge may be a bit more lenient with a non-profit and the specific use will be taken into consideration. However, a non-profit is not free to use copyrighted materials.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @disqus_AiU2g6QNjs:disqus this isn’t an easy yes/no question. A copyright holder has the exclusive right to make derivative works of their work. There are exceptions to the derivative works doctrine that may permit another person to make what amounts to a “copy” of the original work, but this discussion is beyond the scope of this article. You can search “copyright derivative work” to learn more. Thank you for your question.

  • Lynx

    Great Post Sara, and it looks like you’re really helping a lot of people by answering these posts… Awesome.

    I have an interesting scenario that I would like to pose, and just get your feedback. I’m
    presenting a poster at a scientific conference, and I want to use a photo that has been posted on an online blog along with several other photos that I do have copyright for in order to explain a scientific trend. The poster will be presented for 2 hours and subsequently destroyed, so it’s only purposes would be education, research, and scholarship.

    I have contacted to photographer of the picture to ask permission, but it’s been several weeks and I haven’t heard anything back. There is no additional copyright information on the blog other than a statement that “photographers retain copyright” and to ask for permission. My PhD advisers seem to think that I’m in the clear to use the photo, and if I interpret the above statute than everything should fall under fair use. Do you see any issues here???

  • Lynx

    Any they just Emailed me back with permission to use the image. Funny how that works.

  • Joel Hansen

    Thank you for a great post. I’m in doubt with regards to a certain situation. Perhaps you can help?

    An app-developer is hiring an illustrations artist from India, and needs to communicate to the artist what style, posture, setting and so on, that he would like the illustrations to have. To aid the understanding, the app-developer finds some images on Google and emails them to the Indian artist, as a sort of reference material. Not to make exact copies, but as inspiration and part of the description for the job.

    Would that be infringing copyright? Is it questionable behavior? Or is it all right?

  • joanne

    If I put part of this article on my blog site with your name attached as the author of that section and a link to your website for the full article, am I breaking any laws?

  • NEVILLE M.

    Hi Sara,
    It’s possible to set Properties of Images, Photo’s, and Files to READ ONLY. If the Owner’s/Authors of any such works didn’t wish it/them to be Copied or Downloaded, wouldn’t it make sense for them to utilise this Option? ……. There ARE many Sites, that if you Click on the Image/Photo, it displays a Message Stating that it cannot be Copied or Downloaded.

  • http://www.facebook.com/wonderist Thaumas Themelios

    Excellent and informative post, Sara, containing all the important points and caveats related to fair use. I especially appreciated your emphasis at the beginning covering the *purpose* of copyright in the first place. Too few people realize it’s about innovation and the public good, and not about ‘property’ in the traditional sense or ‘stealing’, etc. Well done!

  • Gary

    Sara, I have a somewhat different question. My wife’s photo got plucked off a password protected class reunion website and used in a Killer movie as one of the victims on LMN. Is this legal for movie networks to use photos on their movies without permission? There were multiple women’s pictures used. Thanks.

  • Karen

    I am a manager of a movie theater and have updated my box office sign to a TV that I play PowerPoint slides on to let my guests know what times the movies are playing. What I would like to know is am I allowed to download pictures of the Movie Posters to place on my TV with the times beside the picture or do I need to get permission and or a license from the production company?

  • http://MandyJHoffman.com/ Mandy J. Hoffman

    I am writing a book and a friend is sketching a picture which includes her hand-drawn sketches of the icons for 5 social media platforms such as facebook, twitter, instagram…is it wrong in this case to use that? Or can you draw your own image of an already created image?

  • http://www.brighterscribe.com/ Kyra Dawson

    Thank you so much for this awes-mazing and thoroughly informative article. It is especially pertinent for these next few days while Comic-Con 2013 is in full swing. A lot of movie bloggers just aren’t sure about what is and isn’t allowed and it’s making them (us) leery. This post cleared it up nicely and should prevent A LOT of stress for a lot of bloggers terrified to grab images and video because they don’t want their pants sued off. I straddle both sides of this fair use and copyright fence. I both create and commentate. At the end of the day, as long as no one is scammin’ on someone else’s milk money, if your stuff is being shared – because on the internet, sharing is caring, right? – and they credit AND post a link to your awesome creation’s website, than that’s a good thing, right? Because if no one is sharing then no one is caring NO ONE IS CARING a good gosh darn about YOU or your creations anyways. So which would a copyright holder prefer? I vote SHARE please! Thanks again for a cool post and as Jordan, my editor @ Cinelinx, (<– see? I credited him and didn't scam his personal tagline. Just sayin') would say, thanks for being a force for good ~ and defending the blogosphere! That part after 'good ~' is my creation, so now it's a transformative work, right? And that's what I was wondering about when I read this post. :D

  • de

    I have a friend who posted her watermarked photo on facebook page and the person that has that page removed her watermark and placed there watermark on her photo. Is this illegal for them to do?

  • TotalSocialSolutions

    Never assume you can use a photo, even if it’s an old image of a celebrity that you “believe” is no longer under a copyright. Just because it’s around 70+ years old doesn’t mean that it’s no longer under a copyright. Copyrights can be renewed and passed down from one owner to another, so while the original photographer may be long deceased, his/her descendants likely own the rights to that photo…especially if it’s significant.

    Do your research before using a picture…ALWAYS

  • Duketonii Duketon

    I am developing an application that shows information and images from other web sites. I have the following questions:
    1) Is it legal to do this?
    2) What I have to do in order to do the right thing?
    3) Do I need specific permission from these companies?
    4) Would it be enough if I mention where these images and information are coming from?

    I like your site Sara and thanks in advanced.
    Duke

  • Gina

    Very good information.

    I need further advice. I’m using a photo image found on the web as a resource for a drawing, is that a copyright infringement? Usually I make changes to the image. Sometimes I’m not sure that I’ve changed it enough. These images are for a medical web site.

    Thanks

  • Emelie

    Hi there, I am creating a “Get the Look” feature for twitter facebook and a blog for my jewllery company. Can I use a Google image of an actress to feature on this? Its promoting our website and our pieces so I need to know how the copyright laws apply to this.

    Thanks!
    Regards
    Emelie

  • Karen Wilson

    Some photographers I know disable right-clicking on their sites to prevent images from being downloaded. However, there’s no way to prevent someone from taking a screenshot.

  • monsieur

    hey there, is it allowed to copy movie posters from wikipedia and paste them on your blog? i have a blog where all i do is write movie reviews and i would need some movie posters to give an idea of what the movie looks like. so is it ok to get movie posters from those film’s articles for my blog use? i am also planning to have adsense on the blog in the future. so is all this legally ok? pls respond.

  • Jill K

    If anyone is still following this post…
    i am creating slide presentations on famous artists (most of them dead now). I want to pull images from the internet and use them. For most images there are many different websites to pull from. So the images I’m using would be photographs of artwork not created by the photographer. Is that okay to use them?

  • Paul.A

    Do the above copyright laws in the US apply here in Australia? If not, where could I find the answer?
    Reason for asking is I want to start up a web site. As part of this site customers here in Australia can place a picture of their registration number plate that they want to sell on my site. I do not want any trouble from the Road traffic authority (Vicroads) and fined for
    allowing people for selling their plate on my site. Similar to what is going on at Ebay with customers selling their plates on that site. What is your opinion?

  • Barbara

    Sara, hoping you are still available to answer a question. My question is can I use a photo that has been posted on the internet as a reference to create a painting without infringing on the photographers copyright?
    Barbara

  • NEVILLE M.

    Yes, that’s true, Karen.

    Here’s an Interesting Query ….. What’s the situation with Photo Sharing Sites, such as Instagram etcetera? … actually, Facebook in a way is also a Photo Sharing Site, but with Many Additional Features.
    Take Facebook for instance, there is an OPTION Button below The Photos which says DOWNLOAD (but apparently, this can be Disabled, because I have seen Photos without it). Is that feature Legal or Illegal: Because there’s a Clause in Facebook Rules that says The User Permits Facebook to Share The Photos and Other Information with Other Users. If it was not Legal, then why are they allowed to Provide this Facility? … There is also The SHARE Feature.

    Another thing is with Twitter, when you Open Someone’s Photo’s It/they appear on your Photos on Your Twitter Album. This looks like You have Added The Photos yourself, but in reality, you haven’t.
    Also, when someone Posts a LINK to a Photo on someone else’s or their own Facebook/Twitter, the Photo appears in the Album of That Account. However, in this case, The Actual Photo has not been Posted, but rather An Address that Leads One to That Photo, which is apparently not Breach Of Copyright.

    I’m a member of a number of fan pages/groups and I often hear people accusing each other of Stealing Their Photos or other Users Photos. In the case that I mentioned in the previous Paragraph, they would not be Stealing The Photos, if they Posted LINKS, but rather just Providing an Address to the Location of That Photo, even though the Photo appears in the Album: yet people still accuse each other of Stealing the Photo/s.
    Who’s Wrong and Who’s Right?

    ps .. What’s the Situation with Posting LINKS to Videos such as YouTube: is it Legal to Post a Link to YouTube Videos on Facebook Fan Pages and/or Other Social Media Sites/Webpages ?

  • NEVILLE M.

    The Problem is Stock photos can be Extreme Rip Offs with The Price.

  • NEVILLE M.

    Kind of sounds a bit like Intellectual Rights could be involved too.

  • NEVILLE M.

    Sara,
    I mention this situation in a Post I make further down the page …
    .. I’ve read a Copyright clause that by Posting a LINK to an Image, you are not actually Breaching Copyright, because you have Not Provided The actual item, but rather only an Address That Leads to The Image, or even a Document or other Webpage, so this is not Breaching Copyright.
    maybe Owen could Include The LINK to The Image/s instead of The Actual Image/s ….. What do you think of that idea?

  • NEVILLE M.

    What about taking a Photo of The Book, and using that?

  • NEVILLE M.

    What about if The Painting In Question is that of a General Location such as a Particular Place on a Certain River, or at a Certain Beach or at a Particular Place in a Valley, that anyone could take a Photo of. Is it Acceptable/Legal to do as CuriousPerson suggests, or to produce ones own representation of that Location as a Painting/Drawing, by using the said Original as a Guide?

  • http://sarafhawkins.com/ Sara F. Hawkins

    Anyone can look at images and get inspiration and not enter into the copyright violation realm. Anyone can look at a copyrighted image and re-do it themselves. Now, you can’t photograph a copyrighted image and claim copyright. But, for illustrations, if someone wanted to draw an illustration of a famous cartoon character the artist would own the copyright in the illustration. There may be other legal hurdles b/c the subject (the cartoon character) itself is protected by intellectual property laws but the pure copyright claim wouldn’t be the primary concern.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @8f65f976e591a74681ddee2b2dc5baf4:disqus I’m not sure what the guidelines are for Social Media Examiner, but generally speaking, if you are going to reproduce part of the article, it’s best to limit the amount to just a few lines then link to the full article. It’s a much better practice to write your own commentary and link to the full article so your readers know why you find the article worth reading.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Thanks @Wonderist:disqus!

  • http://sarafhawkins.com/ Sara F. Hawkins

    @2de780bc691ce8fbe7711b1bd4465f90:disqus I would suggest you seek legal advice from a qualified copyright and privacy rights attorney. The fact that people are in the photo means that they need to give permission for use of their image (if you search for “model release” you’ll find out more info).

  • http://sarafhawkins.com/ Sara F. Hawkins

    @aef85ae68ca2e32ed47d51b24c4a930a:disqus you will need to look at your license agreement with the studios regarding what you can/can’t do with regard to their images. Since your theater likely has a contractual relationship with these studios/distribution companies it is likely spelled out for you.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @MandyHoffman:disqus most of the social networks have guidelines for use of their trademarks. This is an issue that crosses both copyright and trademark law. While there is a Fair Use provision of trademark law, it’s not the same as Copyright. You can draw your own image of a copyrighted or trademarked image but that does not mean you are in the clear since the rights in trademark may trump the artist’s right in copyright.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @0f22ee9bc1c4484367cb6a386c001463:disqus something like this should be reported to Facebook as an intellectual property violation. There are a number of legal issues at play in the scenario you mentioned.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @totalsocialsolutions:disqus yes, copyrights can be renewed but more importantly when it comes to images of people there are personality rights that may still exist even if copyright does not. When it comes to celebrities, California has laws that are highly protective of their rights to control their image and its uses.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @duketoniiduketon:disqus you should seek out professional legal advice as I can not comment specifically on your questions. There are both copyright and trademark concerns that you will need to clear, as well as other legal issues that may be present.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @9dfa38d63f679e2c3f8db3f3046f62af:disqus while I do not provide legal advice, I offer you the following information – it depends on the image. Making changes to an image does not remove the rights of the copyright holder. The concept of Derivative Works in Copyright law will govern whether a new work is a derivative work or new work. In addition, if the underlying image is subject to copyright or trademark there may be intellectual property rights that stay with the subject matter. As for being used in a medical web site, that’s not enough to alone raise a Fair Use claim and prevail.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @disqus_U2q5Y9xqE5:disqus the question you pose raises both copyright issues (who took the image of the celebrity) as well as rights the celebrity may have in how their image is used, known as Personality Rights. As I do not dispense legal advice here, it would be best to speak with a legal professional to ensure your specific issues are resolved.

  • http://sarafhawkins.com/ Sara F. Hawkins

    If your movie reviews fit within the criteria for Fair Use and you feel you could likely prevail if challenged, it would be best to obtain images from the original source if possible. I can not speak to whether having Adsense would affect the Fair Use claim, as one form of monetization is not sole grounds for eliminating a Fair Use claim.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @jillkranitz:disqus you should look at the copyright policy of museums/galleries where you are taking the work. Many public museums and galleries have photographed their collections and make them available to the pubic for use. There may be guidelines for providing credit, but check out the terms of use.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @13f192bcfb330fcf1d57701bbd2fb115:disqus this is written for US purposes. Many of the laws have common counterparts in other countries so you should look into that for Australia. If you search for “Australia copyright law fair use” it’s possible someone has written on this topic.

    You do have a second potential concern and that is the selling of what may be deemed governmental property. Some locales prohibit the sale of vehicle license plates because it is not personal property. Check your governmental laws relating to this to determine their policy.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Barbara the typical lawyer answer is maybe. Artists get inspiration from a variety of sources, and go on to create individually copyrightable works. The copyright holder of a photo has the exclusive rights as to a variety of mediums which is where the law of Derivative Works within copyright comes in. Per the US Copyright laws – “Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work.”

    It’s a difficult concept to fully explain in just a few words, and sometimes a challenge to understand the “why” behind such a law. But, in the end, if a copyright exists, then making a copy (or one that incorporates sufficient amounts of the underlying work) in another medium may likely infringe the copyright of the original copyright holder.

  • Jill K

    Thank you for the info Sara. I’ve talked to a copyright attorney and she send me, as an example, MOMA’s guidlines for using artwork from their site. Basically, can’t use them. For what I’m doing I would use about 150 slides per class….a little too much to hunt down everywhere I get them from and research what the policy is. Someone told me to go to Getty’s Free Images…but they are very limited what they have on individual artists. I so appreciate your input.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @jillkranitz:disqus if you would, go to my site – sarafhawkins dot com – and use the contact form. In the message, if you can, please tell me more about how you will be using these images. While I can not offer you legal advice, knowing a bit more info may allow me to give you more detailed information on Fair Use.

  • TotalSocialSolutions

    That’s an excellent point. I wasn’t very clear before, however.

    I was referring to the ever-popular use of Marilyn Monroe, Judy Garland and Audrey Hepburn photos. Yes, all of those beautiful icons are deceased, and the photographs are indeed old, but photos like those don’t lose their copyright. Even if the photographer is deceased, you’d better believe those copyrights were willed to someone else — likely a child or grandchild — who now own those images.

    You’re correct, though. Even photos in the public domain need to be used carefully. Unless it’s spelled out that the photographer obtained a model release, be very careful what photos you use that include people.

  • TotalSocialSolutions

    There’s a good question, though. Can personality rights of an individual be passed down from generation to generation? Asked differently: Can Judy Garland’s descendants legally pursue anyone who is using her likeness without permission?

  • Wilson

    Hi Sarah, thank you for this helpful article. I want to ask you something. If I have a Disney-themed website which is only used to review the characters and movies, and I will display disney characters pictures to support the review, can it be considered as fair use? It’s a fan site and I will not “destroy” the Disney reputation. Instead, I may rise its reputation since it attracts more Disney fans. Can I have your advice? Thank you so much.

  • Jon Michael Whittaker

    I have had a print of a photograph in my possession for 20 years. It was taken by Irv Kloska in 1991. I don’t think he has a copyright on it, but I am using the photo (with his verbal permission) in a book I am self-publishing and on a website (www.crucension.com). Any potential conflict?

  • Dalton

    Would be illegal to use pictures for news?

  • http://sarafhawkins.com/ Sara F. Hawkins

    @f16e53de3540edfdc9bd4df72213be3b:disqus I am unable to offer legal advice. Disney is very protective of both its copyrights and trademarks, and regularly pursues alleged infringement of both. Use of copyrighted images in a review may be considered Fair Use, but there are other criteria that are considered in making that judgement. There are thousands of Disney fan sites that operate within the bounds of the law, so it’s not an impossible proposition. You may want to look at a few of the older, more popular Disney fan sites to get an idea of what they do and don’t do.

  • http://sarafhawkins.com/ Sara F. Hawkins

    If the image was taken by Mr. Kloska in 1991, barring any assignment, contractual agreement, or abandonment of the copyright he likely would have obtained copyright automatically and it would persist for the length of his natural life plus 70 years after his death. If the image is still subject to copyright, if the copyright holder gives you permission to use it for your specific uses then you can use it. If he is not the copyright holder, then his permission doesn’t mean anything. Verbal permission is valid but is often difficult to prove if there is any legal challenge.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Dalton, this isn’t just a yes or no answer. Fair Use is very complex and when you say “news” there are multiple instances when copyrighted images have been used in what is purported to be “news” but the copyright holder has prevailed in establishing that the specific use was not covered by Fair Use.

  • Sven

    I have a quick question. An events photographer recently took an image of me and other os my staff at an awards night and published these photos online. This was of course done without any permission by me or my staff.

    When we then found these images online and used a couple in our newsletter, we received a pretty stern email about breach of copyright…

    however – if the image is of us, surely this would constitute Fair Use – and in addition – if they are selling them – putting the images to commercial use – don’t I have to sign a release agreement before they can on-sell the pictures?

  • Ken

    I frequently like to hone my skills as a graphics artist and regularly recreate difficult vectors and logos. There are no products on the market for any of these logos. I would like to generate some revenue from this hobby. What are the steps I should take to remain legal? I already understand I need to get permission from the copyright holder, but it can’t be that simple…

  • mitch

    So can we use digital images we have purchased on Etsy etc to put on the jewellery we make

  • Greg

    What about using a Kinkade image on a landscape business card?

  • http://sarafhawkins.com/ Sara F. Hawkins

    Photos of people in public often don’t give the person photographed rights to dictate use (that’s why the pap take all those photos in public). Also, at private events the organizer may have a photo disclaimer for attendees. This is becoming more common at corporate events and conferences.

    If you waive your rights by being in attendance then you have no recourse. It all depends on what, if any, rights you waived.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @0d52bf73b6a964ef3e22dea38efa6f1f:disqus often it really is as simple as getting permission. Although, for large brands they’re unlikely to grant permission because of the trademark implications.

  • http://sarafhawkins.com/ Sara F. Hawkins

    If the digital images you purchase come with the appropriate license from the copyright holder you can do whatever the license permits.

  • http://sarafhawkins.com/ Sara F. Hawkins

    All Thomas Kinkade images are subject to copyright so their use is limited to either permission or an exception. It’s quite possible you’d find a licensed Kinkade image for business cards since his portfolio is one of the most highly-licensed property.

  • Ken

    Thank you, Ms. Hawkins! We’re not talking about a large brand, here.

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  • jmacleve

    Such as Andy Warhol and the Campbell’s Soup cans?

  • jmacleve

    I don’t get that. Why do people buy art if not to enjoy it for your own purposes? Same for a picture — if it brings you pleasure, you might, in fact, want to view it when you have no connection to the ‘Net …

  • http://sarafhawkins.com/ Sara F. Hawkins

    @disqus_Vg6eZBDl3J:disqus The Andy Warhol Foundation owns the copyright to his work. You can find out more about this at warholfoundation dot org in their FAQ section.

  • Jiffy

    They’re not. Go to their help section and Search ‘Copyright’!

  • Jerry Bierens

    Thanks. Good info.

  • ls

    Hi, I was wondering if we used an image and sourced where we received the image, does that count?

  • ls

    If we used images from an open news source and credit/linked the original site. We received an email for compensation of the images and found out that website took images from another site.
    We sourced the website that contained the images. We are also not a revenue based website.

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  • AJ

    My husband and I used some photos from the internet of people around the world to make a poster for our church for our Missions bulletin board. Is this copyright infringement? I didn’t even think about it until someone just asked me?

  • http://sarafhawkins.com/ Sara F. Hawkins

    Providing attribution does not prevent copyright infringement. If one is not authorized to use a copyrighted image then using the copyrighted image is infringement.

  • http://sarafhawkins.com/ Sara F. Hawkins

    There are two different issues raised with this question. (1) Unauthorized use of a potentially copyrighted image and (2) Use of an individual’s likeness. When photos include people, there is a concern that they did not authorize their photo for such use and further using their image could raise liability questions. It’s not a “yes or no” determination without examining each image individually. As for using potentially copyrighted images for your poster, it is copyright infringement if you do not have permission or authorization to use the images. Could there be a Fair Use claim? It’s possible, but it’s a case by case basis.

    Always try to find public domain images or those for which you can obtain authorization.

  • Ann

    HI Sara, what do you think, I run a very small cupcake business on the side out of my house (I have another full time job). I have 75 subscribers to my cupcake emails, which I use to send out that months flavors. This month I did a pumpkin spice latte (PSL) cupcake and used a partial image of a cup of PSL. In the image you can see ‘ARBUC’ and then it’s zoomed in on the drink & whipped cream on top of the cup. Did I infringe on copyright laws?

  • Kate Deering

    Im curious … i used an image (unknowingly) from another sight that used a stock photo…The owner (the company that is licensing the photo) is now seeking a huge monetary compensation…The photo on their site is 10,00…they want to charge me 850.00 for unlawful use…is this legal?

  • Tina Scanlan

    I manage a senior center. As you may have heard many centers are closing and have reduced days and hours. We have made some videos set to music to show what we do at our center. These videos have been successful in showing our facebook fans that senior citizens need centers and that they are vital to the physical, spiritual and well being of active seniors. We do not receive ANY money for these videos, The new one we are working on, we would like to ad some humor to by making it look like the seniors are dancing with someone famous. Could this be dangerous? It is all in fun I hope.

  • Amber

    I have a question. If I were to take a picture, and then make it into a book cover for something online, like Wattpad, would it be copyright infringement? Adding text and transforming it, what would it be?

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  • Saskia

    Hi there, informative post! So, if I were to use online pictures of clothes, for the purpose of showing a certain kind of fashion and explaining why I think it sucks…would that be considered fair use?

  • ForDzign

    I found an old image on-line I’d like to use for commercial purposes. Is there a good resource to try to find out if it’s copyright protected or in the Public Domain? I have no idea who took the photo, where or when.

  • George

    Hello, thank you for the post. I have this question: There is a program called pymol that enables the creation of 3D molecular models of molecules. Are the images created by this program subject to copyrighht? For example, if I create a model of caffeine, a well known molecular structure, and post it online, can I claim copyrights on this image?

  • terryroth

    How does this work with pictures a photographer has taken of you, that you paid for? Are those pictures now yours to edit/change or are they still the property of the photographer? I ask this question because a part time “professional” photographer who is hawking his services on FB took some pictures of a family member and while most of them were total crap with the proper editing there were a few that could pass as portraits. Do we have the right once they are paid for to edit them as we see fit?

  • http://sarafhawkins.com/ Sara F. Hawkins

    DISCLOSURE: The contents of this reply are for informational purposes only. Nothing is to be considered legal advice, nor does it create an attorney/client relationship.

    Kate, any time a photo for which you do not own the copyright or have express authorized permission is used there is a risk of copyright infringement. Copyright holders have the right to seek redress for the infringement. And, like many situations that are settled without going to court copyright holders often ask for payment in lieu of using the court system.

    It is legal for a copyright holder to ask for compensation in an attempt to settle what could be a case for damages. Like all negotiations, though, the other party doesn’t have to agree. And, like negotiations that end without agreement the injured party may have the right to sue.

    Many people don’t like that copyright holders are asking for payment that is, in some people’s opinion, is far in excess of what the image could be purchased for in the first place. But there is no law prohibiting a copyright holder from negotiating a settlement.

  • http://sarafhawkins.com/ Sara F. Hawkins

    DISCLOSURE: The contents of this reply are for informational purposes only. Nothing is to be considered legal advice, nor does it create an attorney/client relationship.

    @tinascanlan:disqus any time the image or likeness of a famous person is used there is a likelihood of copyright infrngement (the person who took the image) and the potential to infringe on a person’s right of publicity. The right of publicity is a separate law, not part of copyright, that prohibits others from trading on an individual’s right to control how their likeness is used. It doesn’t matter if you’re making money or not.

    You may want to consult an attorney to get a legal opinion on your work.

  • http://sarafhawkins.com/ Sara F. Hawkins

    DISCLOSURE: The contents of this reply are for informational purposes only. Nothing is to be considered legal advice, nor does it create an attorney/client relationship.

    @Amber When you use the word “take” do you mean you find it online and use it or do you mean you actually create it? If you do not own the copyright in the image and your use would not fall under an exception to copyright law there is a risk of infringement.

    Adding text to an image for which someone else owns the copyright is not often sufficient transformation.

  • http://sarafhawkins.com/ Sara F. Hawkins

    DISCLOSURE: The contents of this reply are for informational purposes only. Nothing is to be considered legal advice, nor does it create an attorney/client relationship.

    @fordzign:disqus unless you can definitively determine if a copyright exists you can’t assume it’s in the public domain. You would need to know several pieces of information to evaluate if a copyright still exists on an “old” photo as it’s possible this “old” photo is not as old as you may think.

  • http://sarafhawkins.com/ Sara F. Hawkins

    DISCLOSURE: The contents of this reply are for informational purposes only. Nothing is to be considered legal advice, nor does it create an attorney/client relationship.

    George, you would have to examine the EULA to find out what, if any, copyright claims are retained by the program. When using software of this nature the rules for copyright may not be the same as if, say, you create a molecular model out of styrofoam balls and straws.

  • http://sarafhawkins.com/ Sara F. Hawkins

    DISCLOSURE: The contents of this reply are for informational purposes only. Nothing is to be considered legal advice, nor does it create an attorney/client relationship.

    @disqus_MJYfxk6APN:disqus whomever takes the photo would, as a general rule, own the copyright. Many photographers have written agreements that spell out the copyright ownership and what the photos may be used for due to separate concerns with the need for a model release or the separate right of publicity (if a person is covered by such rights).

    Paying for portraits does not automatically transfer the copyright. Transfer of copyright is done either before the work is done through a Work for Hire agreement or after the work is done through a transfer agreement.

    This is a very common question, because other than selfies we rely on others to take our photo.

  • terryroth

    Thank you, I am guessing we won’t ever let another “professional” take a picture of anyone that isn’t taken with our own camera. He had a fairly good camera, but I can get one myself. His staging, lighting and editing skills were horrid to say the least, some of them were comical that he placed on facebook bragging about. There was a couple though that could be worked with. My daughter said he gave her the copy rights but I am going to bet he didn’t give it to her in writing. Oh well, lesson learned. Thank you so much. :)

  • Karen Gray

    I have a question…..supposing I’m creating a temporary display in my church, of a religious historical event, for teaching purposes. I do an online image search and find an appropriate picture….in many cases these photos are simply reproductions of classic artwork. If I print and frame a copy for my temporary display, am I breaking a copyright law? Also, if I go to a copy center to have the picture enlarged, is the copy center complicit in my law breaking? Thanks!
    And how would I know if the picture is “public domain”? As I click on several of these works of art, I am directed to other peoples church bulletins etc. Obviously the writers of those bulletins also used the same image of classic artwork and then posted it online, where it has remained as part of their website. I would be displaying it for a few days in church and then removing the display.

  • Moon M.

    I’m thinking of developing a site that would allow users to rank-order and comment on certain prominent people (actors, athletes, musicians, etc.). Since “comment” is considered fair use, is it fair to assume that including a photo of that individual is acceptable. Are there any restrictions (i.e., do they need to be thumbnail images, ala Google Images)??

  • http://sarafhawkins.com/ Sara F. Hawkins

    @disqus_LkpCHOQGAQ:disqus if you are seeking a usable image you should consider finding sources where you are sure the original image is not covered by copyright. A licensed photo of a copyrighted image does not remove the copyright from the underlying image.

    Consider searching for the image you want and add “pubic domain” or “creative commons” to the search terms.

  • Amanda Pyers

    Thank you for the post! I have had some of my photos stolen and used off of my website that I took to promote my photography. The person that took them is using them to promote his own photography business. What should I do to get him to remove them? What should be my first steps and where should I report him?

  • Peter David Shapiro

    I don’t know whether you’re still tracking this thread but I am curious, if you are, how you’d respond to the following. I found a photo online taken almost 100 years ago. Rights holders listed with the photo are in the UK and have been unreachable or unresponsive to repeated emails. The photo shows a face and torso.. I cropped it down to one eye and nose, flipped it, colored it (it was B&W), and rendered to look like an oil painting. No one seeing my use of the eye & nose would be connect it to the original photo. I’m using my image on the cover of a novel that has nothing to do with the person whose photo I used… I just wanted the eye & nose. So, if I am unable to find someone to provide permission to make use of the original photo, given the circumstances, am I on solid ground making use of this image?

  • Landry

    I found an image online that I would like to use for my business. The image was on a blog post that has no links to the image source, nor does it say that the image is trademarked or copy written. I do know that there is a image like this one that is trademarked… however, I do not know that the one that I would like to use is the exact same one. Does that make it okay to use?

  • suikojay

    Hello, and thanks for this informative article! Can I ask your thoughts on using copyrighted images as a person’s avatar on a message board/forum. The avatar would of course be super small, like thumbnail size.

    Thanks!

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  • Jess

    I realize the last comment was 2 years ago – but I am really curious if it’s fair use to find a product from an online store, upload the image for that product, right a commentary on that product in order to sell it and then link the image back to the site. I gain no benefit besides the content of the commentary itself and any traffic to my website.

  • glidagida

    Hi Sara

    I have asked a copyright owner of a drawing to be able to use his drawing online in a critical commentary. Permission to use the drawing was refused on the grounds that the company did not welcome critical comment. The drawing does not represent any product but a future fictitious event, the event is not part of a movie, or tv show it is a stand alone card, similar in nature to a baseball card.

    Not wanting to have my site banned or worse a court case to contend with, what do I do? I can hardly comment on a picture which is not there, its a bit like trying to verbally describe the Mona Lisa for your readers – dull, boring, incomprehensible without a some representation of the image itself.

    Is it possible to avoid legal conflict by creating a similar artwork drawn by myself as I am an artist, a drawing which captures the ‘essence’ of the event, or the spirit of the event? I would incorporate similar objects and similar buildings but of a totally different sort and from a totally different viewing angle. Is this legal or can they still take legal action as a derived work?

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  • East

    Hello,

    Thank you for this post! I would like to ask, however, if one wishes to use a picture to decorate their home (for example, a piece of religious artwork), is it copyright infringement if you find the picture online, save it, print it, and display it? For personal use only?

    Thanks!

  • Christi Kenley

    So I found a photo on Facebook of my son who passed away with another kid in the photo. There was no photographers mark and I thought it was a kids cellphone picture. Anyway I saved the photo then edited the other kid out. Turns out it was a photographers picture and is crying copyright infringement. I was only using the photo for personal use. Is she right?

  • Debbie Brown

    How can the site classmates.com sell yearbooks and class photos legally?

  • Dan

    Hi, I just came across this article and have a quick question. I’m planning on using photos on my website. Mainly corporate logos and possibly the odd sports figure or celebrity. What images can I use (or not use) and how do I know? I see images of corporate logos and celebrities everywhere, does that mean they are within the “public domain” and free for anyone to use?

  • Hal Dunn

    This is a great article. With Facebook and Twitter, for many retweets and Facebook posts of news stories, the “share post” and “comment” feature inserts a full size image or thumbnail of the news story. This is done automatically. I have a question about hotlinking thumbs and full-size images on a site that is a curated blog and news aggregator. I understand that thumbs are probably OK (due to the precedent in the previous Google case), but sometimes an image from the original news source is not that large anyway (e.g., medium size) so it can get pulled in (copied or hotlinked) at its full size. If this is OK for social media sites like Facebook, then I’d think it’s also OK for news blog/aggregator/curated sites. I’m not talking about photos from photography sites, istock, Getty, or AP, etc. Just images in news articles (with a link and attribution) promoting the original news article. Similar to Drudge or HuffPo. Is this safe, risky, or gray area? Thanks.

  • S.N

    Great Post. I was wondering if another business was to use your promotional materials, photos etc. without permission. What procedures should a business take, to have the unlawful use of my promotional material and photos removed from there website and social media etc.?

  • cherie

    a photo shoot was done for a local store as time goes by they have used many of the photo’s which is ok with us but our logo is getting smaller and smaller and in one add three of our photo’s are being used but only one logo reduced in size to hardly see if this ok?

  • cherie

    *only one logo left on 3 of the pictures and it has been reduced to where you can hardly see it. is this ok or should we advice them there need put back the logo on all three? and do they have the right to reduce the logo of the photographer? thank you for any information.

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  • Susan Peoples Pinson

    Thank you for this information, Sara. But how does the age of a photograph affect the copyright? My family owns 100s of photos from late 1800s through 1930s and are divided on the copyright status. Photographer, “Cousin George” died and 1957 but some insist his rights remain for 70 years after. Have they expired?

  • http://sarafhawkins.com/ Sara F. Hawkins

    @amandapyers:disqus I’m sure by now you’ve resolved your issue. If you haven’t, there are a number of different options such as through the hosting company, if they use advertising, or other third-party sites that has terms of service that prohibit copyright infringement.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Peter, chances are the image is no longer subject to copyright if it is about 100 years old. In the UK, the copyright would depend on the date of the photo but generally it is the life of the author plus 50 years. There may be a claim that the use was de minimus. Your first determination is to find out the approximate date of creation and then find out when the creator died.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Landry, there are two concerns here (1) the copyright and (2) the trademark. If it is a trademarked image (which is permitted by a design trademark) the test would be “likelihood of confusion”. Applied for/Registered Trademarks are readily available for search at the US Patent and Trademark Office. On a separate issue is the copyright and who holds it, regardless of the fact you found it online without a source.

  • http://sarafhawkins.com/ Sara F. Hawkins

    There are different theories regarding this. Some people mind and others don’t. If there were to be a DMCA takedown filed, likely the image would be taken down.

  • http://sarafhawkins.com/ Sara F. Hawkins

    If you are an authorized seller of the product, you should examine your contractual relationship with the company to determine what rules exist for using their images. Many companies do not mind authorized sellers using their professional product images, but that’s less of a copyright issue than a contractual one. Per copyright, you’d need to have an exception and since Fair Use is not black and white it’s difficult to say if you’d wholly prevail if challenged.

  • http://sarafhawkins.com/ Sara F. Hawkins

    There are derivative works issues if you were to draw the image yourself. Also, while you may have a Fair Use claim you’d have to be willing to defend it if they were to sue you. It’s a bit of a catch 22. However, the welcoming (or not) of critical commentary is not a reason under copyright to bar a claim of Fair Use. Critical commentary is one of the foundational reasons Fair Use exists. Preventing the silencing critics is why Fair Use was created in the first place.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Yes, this would be copyright infringement not because of the display but because of the reproduction. US Copyright law prohibits the reproduction without permission of a copyrighted work. However, the law prohibits the “public display” which a home likely would not. Nonetheless, a claim of copyright infringement potentially could be mounted if the copyright holder knew and wished to proceed with preserving his or her rights.

  • http://sarafhawkins.com/ Sara F. Hawkins

    I don’t know what you mean by “personal use” since the photographer found out you were using the photo. The photographer would own the copyright in the image. Perhaps you should have a conversation with him/her about your use of the photo since your son has since passed away. Many people are willing to share their work with parents such as you.

  • http://sarafhawkins.com/ Sara F. Hawkins

    This is actually quite a complicated question, but I’ll give the short answer. Schools usually hold the copyright to the yearbooks. You’d have to look at the year the book was publishes and determine what the copyright duration is for that year and what the rules were regarding whether a copyright notice was required and, if so, was the copyright renewed. This is important for yearbooks from 1923 – 1977. For yearbooks after 1977 the rules are a bit more of a maze that has to be navigated. Classmates.com is aware of these rules, as well as the privacy issues that come with copying these books. Several articles have been written on this topic.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Corporate logos may be subject both to copyright and trademark. Few are in the public domain. Celebrity photos are likely subject to copyright as well. This is something you should definitely learn more about or speak with a professional who can guide you.

  • http://sarafhawkins.com/ Sara F. Hawkins

    The Google case settled the photo image issue based on thumbnails. Social networks get past this to use larger format photos through their terms of use. When a user clicks the platforms share button the image can be shared at full size because the original user, through agreement with the terms of service/use, is allowing other users to interact with their work using the platform’s functionality.

    Drudge and HuffPo may have license agreements or, in many cases, use an image under claim of Fair Use. They don’t get to use images just because they’re a big website, there are legal grounds for them using images.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Removal from social media is often done by using the sites “report” function. All the major social networks have built in functionality to allow users to report a copyright violation. As for the website, a DMCA Takedown can be issued to the hosting company or a third-party site like Google if the site is using Google ads.

  • http://sarafhawkins.com/ Sara F. Hawkins

    If you are the photographer, you will need to examine what rights you have from the photo shoot. If it was a “work for hire” the company may likely own the copyright. If it was not, what type of license was granted that allows for the use of the images. You should examine if there is a contractual obligation regarding the use of the logo. US Copyright law has provisions regarding what is called Copyright Management Data (in lay person’s terms it’s the watermark/logo) but that’s beyond the scope of this article since removal is not covered under Fair Use.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Copyright between 1923 and 1977 has different duration depending on whether there was a copyright notice.

    1923 – 1977: No copyright notice, the work is in the public domain
    1923 – 1963: Copyright notice but NOT renewed after 28 years, the work is in the public domain.
    1923 – 1963: Copyright notice but WAS renewed after 28 years, the copyright is 95 years after publication

    Your family is likely thinking of the post-1977 copyright duration which, in general, if the life of the author plus 70 years. However, if your “Cousin George” died in 1957 the post-1977 law won’t apply and you’ll need to measure the copyright duration based on the laws that existed back then.

  • http://nonprofitinsuranceblog.com/ Brett

    Is there a simple way to attribute a photo from Compfight when you’re simply using it for a Facebook post?

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  • Brian Becker

    Thanks Sara. My question, though very specific, is not covered in ANY photo-copyright info I’ve found online.

    Local newspaper photographs my son playing baseball in a school game.
    – question 1) can it be claimed fair use when the photo is of you or your dependent?

    [Because this is dealing with comment regarding a copyright issue, I believe that attaching the photo here can be protected as fair-use.]

    Because I pay for access to the newspaper’s online edition, I saw the picture online. Using a feature of their web site (not my browser) I clicked their “CLIP” button and drew out the section of the paper I wanted to clip. Not only the photo but the caption as well which included the photographers name.

    When I received the newspaper’s email, I posted the image/clip to my facebook page with comment about my son and the play:
    [quote]Though we didn’t win, it was great to see Ben’s completion of a double play on the front page of the sports page yesterday. It was one of two double plays he teamed up on. This was the first, a 2-6 with Trynt Tompkins catching a bunt popup and firing to 2nd before the runner got back. The next inning…[/quote]

    I was notified by a friend who saw the post that he had done something similar and the newspaper sent him a copyright infringement threat. I’m not asking for legal advice…just your general thoughts.

    Question 2 & 3 involves the newspaper itself since I’m not using just a photo but a portion/clip of the newspaper which includes a photo which was emailed to me by the newspapers server.
    2) Do I have to assume that a clip of the newspaper using their own tool is copyrighted and not postable on facebook.

    3) Can I claim fair use since I’m specifically explaining the actions taking place in the image?
    First prong because I’m commenting on the photo
    Second prong because the clip was 1/16th of a single page of a 30 page edition of the newspaper.

  • NEVILLE M.

    I’ve often seen Images Posted by people who don’t own the Image, with The Owners Watermark on it. Also, some put a Copyright Note on the bottom of it, but some people just Crop the Image and Remove the Copyright Note. And another thing is that The Site that is Displaying The Image, DOES NOT Always Own It.

  • NEVILLE M.

    Adam/Sarah,
    If you read the Licence Agreement of The Software, it will most likely have a Statement regarding such use of it, and any Limitations. It’s possible and even quite likely, that it will State that You Cannot Use it for Commercial Purposes and/or to Gain Profit.

  • JTR

    I have a collection of paintings, can I photograph them and post them in an album on Facebook?

  • JT

    Say I write for a small non-monetized news blog with about 20 college age writers from across the country, and am writing an article about Julia Collins’ winning streak on Jeopardy. Would it be fair use to use a photo of her from the Jeopardy facebook page?

  • http://sarafhawkins.com/ Sara F. Hawkins

    @brett924:disqus attribution is a plagiarism issue, not a copyright one so any attribution is likely better than none. For the copyright issue, Facebook has the “Share” functionality which should be used to stay compliant due to the licenses granted by their TOS. If not using the “share” function, there could be copyright violation issues.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Brian, it’s somewhat complicated. Just because it’s a photo of you (or your son, or anyone really) taken in public by someone else doesn’t mean you have any rights to it. I realize you’re not asking that, but I wanted to clarify.

    You would have to see what the terms are with regard to the “Clip” feature and if there is any language allowing for some type of share. Seems odd to have that type of feature then not allow any sharing because, it’s just the digital equivalent of what people do with the printed paper. Clipping (whether paper or digital) does not impact the copyright ownership of a news article. The key would be to determining what, if any, language exists regarding use of the publication’s clipping tool.

    Since Fair Use is a defense to Copyright Infringement, getting a notice from the copyright holder that the alleged use is infringing is but a first and necessary step. Is it Fair Use? It’s always a “you’re wrong, I’m right” conversation because Fair Use isn’t a black and white test.

    While your friend may have received a notice, you may not. Could be a number of reasons. If you do (and I know your comment is a month old) then address the issue and raise your Fair Use claim if you feel you would be able to support it. Ultimately, Fair Use is not decided by the copyright holder or the alleged infringer. Instead, in many situations one side backs down when they understand the other’s use and intentions. If the newspaper wants to pursue a copyright infringement claim, that’s a costly undertaking and one that may not likely result in any award of damages. But, I’ve seen businesses do crazy things!

  • http://sarafhawkins.com/ Sara F. Hawkins

    JTR, if the painting are in the public domain you may do so without concern for copyright. If the paintings are subject to copyright, taking a photograph would not negate its copyright. And while you could claim copyright in your own photo, the copyright laws relating to the underlying work still exist and trump many of your exclusive copyright rights. Further, posting your photos of the paintings to a public forum may not sufficiently qualify as Fair Use. The Fair Use determination is a case-by-case basis and the painting’s copyright holder may not see it that way. You’d have to be confident you could satisfy the 4-part test for Fair Use.

  • http://nonprofitinsuranceblog.com/ Brett

    So instead of downloading the image and playing with it in something like PicMonkey or Canva, I should probably stick to using a share button or the Buffer Chrome extension to post directly to the FB Page?

  • http://sarafhawkins.com/ Sara F. Hawkins

    JT, monetization does not, itself, negate Fair Use. Many major news publications use material under the Fair Use clause of the US Copyright Act. I can’t tell you if your specific use is covered by Fair Use (that would be legal advice). If you feel confident that you could defend your use if challenged, it’s your choice. It’s still copyright infringement but Fair Use is an exception that allows the use of another’s work to advance certain purposes.

    Many photo agencies do not believe any use is Fair Use and vigorously purse anyone who uses their work without a license.

  • Les Pruitt

    What if a photo was taken over 200 years ago, and the original author is dead? What are the fair use restrictions if it’s found on the Internet?

  • Hal Dunn

    I had no idea I was wasting months worrying and researching this topic for nothing. It’s a non-issue after all. Flickr actually has a ton of quality photos available with reuse Creative Commons licenses. There are a a few good search tools that search​ through​ Flickr, such as Compfight.
    Also this Morgue File site is decent: http://www.morguefile.com/. More great sources here: http://writtent.com/blog/15-places-find-free-images-blog/. I was barking up the wrong tree for nothing. But I do thank you for the good legal info.

  • Elle

    Thank you for the information. Would you tell me whether the law is violated (eg. amazon seller copied the apple product images directly from the original website to sell apple products) ?

  • Mackenzie

    I was hoping to sell phone cases printed with images from tumblr (the images and typography aren’t mine). I’m assuming this is violating the photographers copyright, but I’m not completely clear. There is a store called Cases by Olivia Rose, and she sells similar cases to what I am thinking about, and I’ve noticed that she does not use her own typography or photos, but calls them her own designs. So if she can use photos from all over the internet, am I allowed to do the same thing? It’s nearly impossible to find the photographer if an image is on tumblr, so I’m not sure how to approach this!

  • http://sarafhawkins.com/ Sara F. Hawkins

    @les_pruitt:disqus in general, works registered or published in the US prior to 1923 are in the public domain and Fair Use does not apply. Just because a photo was taken over 200 years ago doesn’t mean that is when it was first published or registered. Some works are created but not published until later, so you may need that information and when the original author died to determine if it’s in the public domain.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Elle, that’s not a copyright issue specifically. That’s also a trademark issue. There isn’t enough information to make a definitive call as to whether what you are alleging is lawful or not.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Just because someone is selling phone cases with images belonging to other people doesn’t mean what they are doing is legal. It also doesn’t mean what they are doing is illegal. There isn’t enough information to determine if there has been permission or license granted. If it’s just a matter of taking images from the internet and using them on phone cases without authorization, then there could definitely be a copyright violation. But there isn’t enough information to make a judgement call on this other store.

    The law states very clearly, though, that a copyright holder has a host of specific exclusive rights, which are only trumped under certain circumstances (such as Fair Use).

  • Chuck Kuhn

    Does the person or friend I travel with have the right to photographs I’ve taken? I’m being asked to provide photos (hundreds) of a trip we took together. I originally gave my friend a few hundred for personal use. Their hard drive crashed and now wants me to reissue all those on hard drive (I have no clue which ones) plus any other I took on the trip. I post to Art sights that sell my photography, plus blogs, FB and other places. I don’t want to release photos I’ve edited, show in galleries, etc etc. It’s my only income. Tks

  • Thomas Trabalza

    Sara – Loved your article. I have a question for you. My hobby is collecting casino chips. Whenever I visit a casino I keep one of the $1 chips. Recently I’ve created a webpage to show off my collection. I’ve used 2 types of images. The first are scans of my chips. The second are images I’ve pulled from the web to indicate to other collectors which chip I’m searching for. These images come from various sources – eBay is one. There is also a site that maintains a large image database of casino chip images gathered from fellow collectors (myself included). The latter is the issue. I’ve had a falling out with one of the guys that maintains this image database. He’s now asked me to remove all of the images from my website – claiming that I am violating a copyright of some sort. These images are pictures/scans of casino chips. My website is only used for my hobby and is not a business. Can he assert this copyright claim? Does he have any legal grounds or is he just making an empty threat? What do you think I should do a about it?

  • Ryan

    Ok I have to ask, what about wallpaper usage for someone’s desktop? Would that fall under fair use or would that still be considered stealing the work?

  • Jess

    I just found your article and really appreciate your sharing of knowledge on the topic. But what happens in this case whereby a mother’s very popular posts of her own work were being copied blatantly and used elsewhere?

  • paleominius Benz

    what about images found on wikipedia?

  • Elizabeth

    In the context of blogging, let’s use a music blog for example, and they use a photograph of an up-and-coming dj they’ve taken from his facebook profile. They upload the photo to their blog and write about his newest release. Could this be considered commentary, news reporting, or criticism? The article may only have information about the dj’s track, or it may also have an interview with him, however the photograph was taken by a photographer he used for free, and the photographer did not release their copyright of the photo to the dj, but rather allowed him to use it for personal use on his blog. How should the photographer handle their work being used?

  • http://sarafhawkins.com/ Sara F. Hawkins

    @chuck_kuhn:disqus Unless there is some legal agreement, there is no automatic right to another person’s photos. Perhaps your friend could argue there was an implied contract but Copyright law rarely enforces implied contracts due to the nature of the right.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Thomas, the general rule in the US is that if you take the photo you own the copyright. Whether the images are used for a hobby or business is not a definitive determination of whether or not there is a Fair Use claim. The difficulty comes in trying to assert Fair Use and do so with a DMCA takedown. There are specific rules and your hosting company will likely follow them very closely if they receive a DMCA takedown request. Claiming Fair Use often poses challenges for hosting companies and they usually have a protocol in place as to what they do if there is a Fair Use claim.

    Can he assert a copyright claim? If he owns the copyright, sure he can. Just like anyone else.

    Does he have any legal grounds? Who knows. If he owns the copyright then it’s possible he does.

    What should you do? If this is a significant concern you should contact a copyright attorney in your area.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Ryan, copyright infringement isn’t the same as stealing (from a purely legal sense). While infringement happen regardless of who sees it happen, the fact is that the copyright holder has to know their work is being infringed to pursue an infringement case. This is where the law and reality often don’t align perfectly.

  • http://sarafhawkins.com/ Sara F. Hawkins

    If a work is being copied and the work is protected by copyright, it’s likely there is a claim for copyright infringement. If the copying is pervasive it might be in the copyright holder’s best interest to contact a copyright attorney or someone knowledgeable in the area of copyright infringement to discuss the matter.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Wikipedia often uses copyright images. There is a separate section on wikipedia that hosts public domain images. But, on many Wikipedia pages there are copyrighted images for which the policy of Wikipedia is to provide appropriate attribution. Wikipedia has a detailed image use policy regarding the uploading of images. Images that do not meet the designated criteria may be removed by moderators.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Elizabeth, if the photographer does not believe the work is covered by Fair Use the photographer could seek counsel on the matter to get a legal opinion. While a copyright holder may file a takedown under the DMCA, courts have stated that a copyright holder should consider whether an unauthorized use of a copyrighted work qualifies as Fair Use before sending a DMCA takedown.

  • paleominius Benz

    ahah i got it, thank you

  • Moo Jae

    Hi I worked for a Wedding Video company and I shot, edited many weddings for them. When I left them I used the some of the footage that I shot to create a Portfolio to use for my new company and they are now sueing me. Am I in serious trouble?

  • Dan

    I am publishing a poetry book and using photos of my friends, most they have posted on Facebook. Most have given me a verbal OK to use their photo, but most are in the photos but did not take it, but it’s their camera. Should I be worried about copyright issues? Also, if sued does it depend on how much profit I have made on the book? If all profits go to charity does it even matter if I’m sued?

  • Sydne Horton

    I found this article to be very helpful for the use of images in this day in age and how copyright works with all of that. -Sydne Horton

  • http://spectralight.com/ Mark Madere

    A “verbal OK” is as good as the paper it is written on. In other words, you’ll have no proof they gave you permission if they should sue you for using a photo of themselves for a commercial purpose.

    Even when I photograph a family member and think I may use it to promote my photography studio, I have the relative sign a photo release. Sometimes, it is those who you least expect to give you a problem are those that do.

  • Kat

    Interesting article. However I am writing my book – call my memoirs or philosophy on life (one of those new age books, with quotes on life and everything in between), so my question is: I have quoted several of Kahlil Gibran’s quotations, etc, and referenced him in every possible way – and have copy and pasted images off the web (most have quotes attached). I don’t intend to publish for sale, but purely for my family use when I’m no longer around – can I use and print these images off the world wide net AND can I copy Kahlil Gibran’s quotes (I’m no way, plagiarising his beautiful prose) without permission??????

  • Jaime Jaeschke

    Jaime Jaeschke #@noctrl.edu

  • Sonya

    Hi, I’m a developer on IMVU, I make my own original textures for products. I save all my work every step I take in the process of creating my textures before I submit one to their client. I do not upload my work any other place.

    By their own terms of service guidelines, they state that anything uploaded is sole property of the developer that created it and may not be used without the creators consent. However they promote the use of products that are used to extract textures; and my work is currently all over their catalog (including their advertisements). Bringing them in huge profits, while I don’t receive one cent.

    I have tried for 2 years to get this issue resolved through their DMCA agent, contacting the BBB and even most recently reaching out to the CEO. But the only results I have gotten thus far has been death threats on myself and my son (Their DMCA agent gave my personal information out to anyone I filed a complaint on, full name, phone and address).

    Now; I have several new textures that I would love to submit; before doing so I would like to have my work would it be best that I submit my newer work for copyright? Also, is it possible for me to take legal action against IMVU?

  • Make Cordova

    Thank you for the very informative post about Fair Use. It make sense. Though, i have a question, about a picture i copy from Pinterest and paste it on my website, is this part of Fair Use?

  • Russell Wojcik

    Google has incorporated permissions and reuse into their advanced search criteria. You can search for images at any level of reuse permissions, which is helpful if you will/will not be altering the image. The Creative Commons website also has an all-encompassing search tool that allows you to search a variety of databases (Google, Flickr, etc.) for images.

  • Annie

    photographs taken in a public place – thats allowed by the current law but what about when a shot which inludes people in a public place , posted in somewhere like Facebook? I have someone hassling me because I took photographs of last winters storms on a seafront with people in the shots. There are no reconisable faces in the shot , I wasnt photographing the people, they were just there, but there is no way to ask permission of all those people…so am I breaking any laws by posting such images??

  • suikojay

    You could always edit the pictures with a graphics program like Paint or GIMP, and edit their faces so that they’re unrecognizable.

  • Mark Bierman

    Thank you for the article. I’m developing my own website right now and I was wondering about including thumbnails on my website and then linking to external trailers on YouTube for informational or promotional reasoning.

    Mark

  • newton

    Hi Sara,
    I have a blog I use to teach my students. It is strictly for teaching. i serch the internet for useful materials and sometimes I find PowerPoint slides and some pdf files. I embed them in my blog for others to use. Some of the slides still have the watermarks or signature. I am happy to let readers know where I god it but I just want to use it to drive my teaching home. What do you say about this?

  • Sabrina Thompson

    Thank you for the post. It was helpful.

  • DaMari Taylor

    This Post was very informative
    -DaMari Taylor

  • DaMari Taylor

    This Post was very informative
    -DaMari Taylor

  • http://sarafhawkins.com/ Sara F. Hawkins

    Appreciate your kind words and time to comment @Sabrina Thompson

  • http://sarafhawkins.com/ Sara F. Hawkins

    Thank you @DaMari Taylor. Glad it was helpful to you.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @Newton you use the word “embed” and that’s a key word for sharing on the internet. If you are using an online platform that allows for embed, check the Terms of Service/Terms of Use to see if there is a license. Many platforms with a sharing mechanism include such a license in their TOS/TOU. For example, a copyrighted work that is uploaded to YouTube and has the “embed” or “share” feature enabled is granting a license to other YouTube users to use their work, but only so long as they use it via the platform functionality. If there is nothing like that, it’s quite possible Fair Use would apply but since I’m not dispensing legal advice you would be the one to defend your right to use if challenged. Hope this helps. ~ Sara

  • http://sarafhawkins.com/ Sara F. Hawkins

    @Mark Bierman I just answered this for Newton so I’ll share that answer with you. A copyrighted work that is uploaded to YouTube and has the “embed” or “share” feature enabled is granting a license to other YouTube users to use their work, but only so long as they use it via the platform functionality. Using a thumbnail does have legal precedent as not being a copyright violation, but if the platform provides a share or embed function the TOS/TOU likely offers more protection than hoping for Fair Use.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @Annie the rule of law pertaining to taking photos in public is both well-settled and highly misunderstood. The general rule is that if you are legally in a public space using standard photography equipment (no telephoto lenses to peep on people, no high-powered lenses to see people on private property) and there is no prohibition to taking photos (courtrooms, military bases, private company) if there is no expectation of privacy then you can take photos of people. Additional legal issues often comes with what you do with those photos. Having the legal right to take the photo doesn’t mean you have the legal right to do anything you want with the photo. There are prohibitions against using someone’s likeness for commercial purposes so you can’t sell the photo with a recognizable person to a stock photo company or for other commercial purposes without first obtaining permission from the individuals in the photo. There are additional complications if there are also copyrighted objects (art, buildings, etc.) in the image as well.

    Posting on Facebook may or may not be seen as a “commercial purpose” depending on the specific circumstances such as if it’s just a personal profile or a business page. For example, if you are a professional photograph known for your outdoor photos and you post the images it may be seen as commercial if you’re in the habit of posting photos online as a way to create a portfolio. The average person likely has no commercial purpose for posting a photo of a winter landscape, but it’s always on a case-by-case basis.

  • http://sarafhawkins.com/ Sara F. Hawkins

    This is often an option.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Very true about these resources. However, unless you can guarantee that the posting is from the copyright holder it’s a bit “iffy”. Unfortunately, many people post photos to websites and do not have any legal right but upon uploading it their name gets associated with the image and if they add some type of permission it still won’t relieve the ultimate user from copyright infringement. While the website is likely protected under DMCA Safe Harbor rules, the user of the image is not. So, always be careful and ensure you’re getting permission from the legal right holder.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @makecordova:disqus never cut/paste from the internet unless you know it’s public domain. This particular image is likely subject to copyright and posting it anywhere would violate the rights of the copyright holder unless there is explicit permission, a license, or an exception to copyright infringement (such as Fair Use). Could there be Fair Use in your posting it to your site? Perhaps, but a Fair Use claim is ultimately for a court to decide or for a website administrator to abide by DMCA procedures. Pinterest has a “Embed” feature, although it’s not easy to find and has changed several times in the past 24 months, that would provide the appropriate license to share the pin. It is always good to go to the original post and see what they say about posting/embedding. Many infographics come with embed codes from the original source as people design them to be shared, but under the terms they set out.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @disqus_EmcAVIYU6N:disqus DMCA information is not private, which is a bit of a challenge. However, it should not be given to just anyone as there are guidelines for who can obtain a DMCA Takedown. If you are being threatened, you should contact an attorney and perhaps the appropriate law enforcement. Further, you should closely review the Terms of Service for the website you are uploading to and see what type of license you are granting when you clicked that you agreed/accepted their TOS.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Any time a copyrighted work is taken off the internet there is a good chance of copyright infringement. However, if you create something and the only people who ever see it are your immediate family while there may still be copyright infringement there is still the logistical issue of how is the copyright holder going to know their work was infringed. Can you use these works? I can’t tell you yes or no, as I am not providing legal advice.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Thank you very much, Sydne, for taking time to read the article and comment. It makes me happy that other are finding it so helpful. ~ Sara

  • http://sarafhawkins.com/ Sara F. Hawkins

    @disqus_y7b1n1VQgR:disqus if your use of a company’s stock image would fall under Fair Use and you feel like you could defend your use then it’s up to you. Many companies often provide a “press” section with high quality images for press and review purposes.

  • http://sarafhawkins.com/ Sara F. Hawkins

    As @spectralight:disqus points out below, a verbal “model release” is not very helpful if the person says they never gave you permission. A model release should be in written and kept forever. As for the copyright issue, the copyright is vested in the person who creates the work. So, it would be the person behind the camera (in most cases, although there are some exceptions) not the owner of the camera. If you get sued, damages will be determined based on a few different measures. If the images were timely registered there could be significant statutory damages that have nothing to do with any profits (or lack thereof) made. If not statutory, a judge would base damages on many different factors and may or may not give weight to how the profits were used.

  • http://sarafhawkins.com/ Sara F. Hawkins

    @moojae:disqus your ability to use video you shot for your prior employer would depend on what contractual relationship you had with them and whether there was a Work For Hire provision in your employment agreement. Absent anything in writing, it becomes murky with regard to the ownership of the videos you shot. If you are being sued you should contact an appropriate attorney immediately.

  • Sonya

    One of their many statements on copyright and trademark infringements (Copy and pasted from their TOS):

    Additionally, IMVU agrees that the use all of your Submissions will be
    in accordance with IMVU’s Privacy Policy applicable to PII. YOU RETAIN
    OWNERSHIP OF ANY COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS
    APPLICABLE TO ANY WORK OF AUTHORSHIP OR INFORMATION YOU CREATE AND
    SUBMIT TO IMVU, SUCH AS YOUR SUBMISSIONS. You further agree that you
    will not upload, post or otherwise make available on this Site any
    material protected by copyright, trademark, or any other proprietary
    right without the express permission of the owner of such copyright,
    trademark or other proprietary right owned by a third party, and the
    burden of determining whether any material is protected by any such
    right is on you. You shall be solely liable for any damage resulting
    from any infringement of copyrights, trademarks, proprietary rights, or
    any other harm resulting from any Submission that you make.

    There’s also several clauses where they claim no responsibility; such as (also copied and pasted from TOS): NEITHER IMVU NOR ITS LICENSORS SHALL BE LIABLE TO YOU FOR ANY
    DAMAGES RESULTING FROM YOUR USING, DISPLAYING, COPYING, OR DOWNLOADING
    ANY MATERIALS, THIRD PARTY CONTENT OR SUBMISSIONS TO OR FROM THIS SITE.
    IN NO EVENT SHALL IMVU OR ITS LICENSORS BE LIABLE TO YOU FOR ANY DAMAGE
    TO YOUR HEALTH OR FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE,
    SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA,
    REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN
    IF IMVU OR ITS LICENSORS KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE.

  • liz

    Hi
    What can you do if the image was already ordered to be taken down,
    by FB and they removed it. However, the same person altered my image
    and that of my disabled son and made us both to appear like devils and
    then up loaded the image again for the world to see? Mind you all family
    and friends who were at that party no who is behind the green devil
    image? Is there anything I can do on that type of situation? FB won’t
    remove these altered images?

    Thanks to all who respond appreciate it.

  • http://avelardolopez.com/ Mr.Avelardo Lopez (MrSuave)

    Very good article. Very well written. Good job.

  • samantha parmer

    Thank you for sharing this knowledge. I feel like too many people are ignorant on copy rights and what all that entails.

  • Gricelda Covarrubias

    Can we use images found on google as inspiration for concept Interior Design boards? Throughout my school years, it is what we did. Being done with school now, is that legal to do in order to show concepts and what inspired you to clients?

  • http://www.cupidslibrary.com/ Patricio

    Thanks for this informative post. I learned a lot.

  • debbi walton

    Thanks for your excellent article, Sara. If an image does not have a copyright mark at all, can you assume it’s available for use?

  • http://www.trinity-km.com John Donahue

    Great article, I was recently referred to it by someone who took away that “as long as it’s non-commercial you can use the image.” I have to say, when I first read the article, that’s exactly what it appeared to be saying, until the summary, when you clarified things.

    Please be clear, you generally can’t take an entire image from the web and use it on your blog or website unless the owner specifically permits it. It’s the equivalent of taking an entire article and republishing it on your site. Most people understand that’s wrong. It confuses me why photos don’t get the same level of respect.

  • Ashley Roberts

    This article was extremely informative. However, it didn’t quite give me the answer I was looking for… See, I’m getting into Cross-Stitching, and there are a few projects that I am working on. These projects are going to be given to special people as gifts, so I’m not so worried about those. However, in order to get the designs for these Cross-Stitching patterns, I use images that I found on Google. If, by chance, more people would like one of their own and I decide to charge them for my works, would it be going against the copyright? It’s confusing to me… And I’m so afraid that I’ll get into trouble if I do go through with making these products… I am using a (possibly) copyrighted image as a basis for the pattern for my own craft that, eventually, I would like to sell. Would I be in the wrong?

  • mechimackie

    i administer a small community group on facebook called kinghorn photos, our policy is everything posted can be shared, we’re not a photographic group as such but started sharing old photos, stories and banter which helped everyone, especially the younger members learn about their community, recently we’ve attracted some serious photographers from outside our community who post images to our group on a public setting for us all to see, the trouble is they’re now threatening us with legal action etc if we miss-use their work, even for non commercial purposes. surely given our policy which they accept as part and parcel of being given membership of our group and the fact fact they choose to post publicly means something, i’d appreciate your help and advice.

  • DUC TRUONG

    Recently our website (a non profit site with that have Federal and State Tax Exempt) shared an article which is for the benefit of vegetarians and practitioners, and that articale have been published by numerous websites for more than 4 years (since 10/1010). In this article, it has one image of Getty Images and there is no copyright notice or identifying information, no logo, no warning, no watermark, no name, it is a bare image. (the article have total of 10 images)
    Getty Images then claimed it is their RM Image in their settlement demand letter, extorting us to pay $650. We immediately removed the article and all links to photos, then explained them that this is a public article and we are not a commercial website. They then reduces the settlement to $150 because they claims it is an aesthetic enhancement for the website, and force us to pay or sue us?

    Please tell us what should we do with this settlement? And how can we recognize it is a copyrighted image to avoid sharing?

    Thank you

  • Chandru

    Hi Sara, I was planning to develop a review website for music albums
    and I would like to use the music album art in my website.

    Does it come under fair use or copyright infringement?
    Please mention ideal size of image that comes under fair use policy.

    Thanks.
    Chandru

  • Chandru

    Awaiting for your kind reply. Thank you

  • Chandru

    Awaiting for your kind reply. Thank you

  • WieldyMinotaur

    Can you upload random photos on the internet to wikis?

  • http://sarafhawkins.com/ Sara F. Hawkins

    Using an image for inspiration is acceptable to a certain degree. For example, many people use Warhol and Pollack as inspiration but they don’t copy them. You’re correct that using them while in school is different than using them for your commercial business.

  • http://sarafhawkins.com/ Sara F. Hawkins

    US Copyright law does not require, and has not for many years, a work to have any specific copyright mark on it. Obviously, it’s helpful if it does. However, you can not assume that just because something is not marked that it is in the public domain.

  • http://sarafhawkins.com/ Sara F. Hawkins

    The Fair Use exception under US copyright law does not automatically apply to non-commercial uses. There are many non-commercial uses that may not qualify as Fair Use, just as there are many commercial uses that may qualify as Fair Use. There are 4 factors and whether the use is commercial is just one of the 4. And, in fact, is not the most heavily weighted.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Copyright provides exclusive rights for derivative works. This means that the copyright holder is the only one who can make something else from their work – and in your example making a cross-stitch pattern would be a perfect example of a derivative work with regard to a photo or artwork.

    For example: One can not take a cartoon character image from Google and then make a craft pattern or finished product that they wish to sell without risking a charge of copyright infringement. The Fair Use argument would not likely apply.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Can’t offer legal advice, sorry. What I can offer is information. The terms of service could possibly control some license issues. It is very rare for terms of service to claim a broad license for images that users upload. This very question was raised on a social network platform about a year ago and there was immediate public outrage and backlash. It’s one thing to be like Instagram/Facebook and the like and have a “share” button or feature. It’s something totally different to allow other users to take the work of other members for their own gain. You really should seek legal counsel if you are being threatened with legal action.

  • http://sarafhawkins.com/ Sara F. Hawkins

    You have to assume that every work is subject to copyright if you don’t know otherwise. Getty is very vigilant at protecting their rights and the rights of their photographers. Being a non-profit does not automatically mean you are not a commercial site. That is often a misconception.

  • http://sarafhawkins.com/ Sara F. Hawkins

    Chandru, I don’t get notifications of new comments. I just come back here periodically to see if there are and answer them. Unfortunately, I can’t answer your questions as you are asking for legal advice. If you are worried about being sued or having your site taken down under the DMCA you should seek a legal opinion with regard to your exact situation.

  • http://sarafhawkins.com/ Sara F. Hawkins

    If the photos do not belong to you, you’d have to read the terms of the wiki and what they say about uploading images for which the copyright is held by a third party.

  • http://www.trinity-km.com John Donahue

    Thanks for the reply Sara. Anyone who wants to get smarter on this should Google your name. Thanks for sharing your expertise! Much appreciated.

  • http://spectralight.com/ Mark Madere

    I had a similar situation with Getty. I got them to reduce their demand to $500. If I were you. I’d pay the $150 and avoid potential litigation which would be far greater than $150 the moment you hire legal counsel. Good luck.

  • Richard Pauls

    What if a competing manufacturer uses your images on their website to sell their version of the same? I.e. Portraying the image as thier own?









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