There are several risks associated with using what you think are ‘public domain’ images. Just because you can download an image does not mean you can use it in your business.So, where can you find images without the risk of copyright infringement?
Five places to find legal images for your website, blog or marketing:
1. Public Domain images.
Entrepreneurs often wrongly assume any image they can download or copy is “Public Domain.” Public Domain has specific legal meaning under US Copyright laws. First, you can use Public Domain material, but you can never own it. An interesting exception is you may create copyrights in a collection of public domain images on a website or in a book. The protection for the collection as a whole is based on the creative aspect of choosing images and how arranged in the collection. The images in the collection are still public domain and free for anyone to use.
How do images becomes ‘Public Domain’:
- The copyright owner dedicates it to the public allowing anyone to use.
- Copyright expired. Anything pre-1923 is in public domain all copyrights expired. For works between 1923 and 1977, it is complicated and requires research to determine if copyright active. Since 1997, copyrights last 70 years after death they are still valid, unless,
- Failure to follow copyright registration or renewal rules causes the image to become public domain.
Basically, unless you want to use a very old image, don’t assume it is public domain and do your homework on anything created after 1923!
2. Creative Commons licensed images.
This is the most commonly used and most commonly misunderstood! Be careful when using a creative commons image or licensed work whether from Flickr, FreeFoto, FreeImages, PhotoGen, Google Images, or other photo sites. Your greatest risk is using an image uploaded by someone who does not own rights to the image but applies a Creative Commons license! The typical scenario is you download an image, apply the Creative Commons license, then receive a notorious Getty Images demand letter. But Bob, I used the Creative Commons license, how can this happen?
There is no independent verification by these sites that the person uploading the image owns it. Although the terms of service normally prohibit uploading images you do not own, until the website receives a DCMA take down notice they are blissfully unaware. This happens, a lot and you have no way of knowing until you received a Cease & Desist or demand letter from the true owner. Creative Commons licenses do NOT protect you from copyright infringement claims. The Creative Commons license agreements state they provide no warranties regarding licenses, they disclaim all liability for damages for use of Creative Commons licensed material, and they are not a party to their public licenses.
The Creative Commons licenses most used by businesses:
- Attribution license: Only requires attribution to the owner. You can use images with this license in new commercial works.
- No Derivatives: Does NOT allow you create a derivative work from the licensed image, but you can use the image as is in new commercial works.
Use with Caution:
- Share Alike: You can use the image in a new commercial work, but you must apply the same Creative Commons license to your new work – so anyone is free to use as well – you are giving up your rights to your work.
Avoid:
- No Derivatives Non-Commercial: You can not use the image in new commercial works.
- Share Alike Non-Commercial: You can not use the image in new commercial works.
Finally, Be careful of images promoted as “copyright-free.” This term refers to royalty-free artwork, meaning you do not need to pay a royalty to the photographer, but it still is copyrighted and requires a license or attribution under Creative Commons to legally use. Be sure to comply with the license requirement such as attribution or link back.
3. Purchase license to use an image.
This is generally done through purchase from a stock photo company like Fotalia, ShutterStock, iStock, which have subscription or per photo charges. Purchase the license that best suits your intended use. Yes you are paying to use the image, but the cost is significantly less than defending an copyright infringement lawsuit! These also fall in the ‘Royalty-free” image description. There are a few sites that have ‘free’ images if a link back is provided, if don’t want to purchase, such as: FreeFoto, FreeImages, PhotoGen and Flickr. Always be sure you understand what is required before using!
4. Hire a professional photographer to create the images you need.
Be sure to review the contract or have an attorney draft a license agreement for you. The law is can be confusing regarding ‘works for hire’ and which rights pass to you and the photographer retains. A simple contract or edit to their contract will ensure you own all the rights to images you commissioned.
5. Why don’t you take a picture!
You can simply take and use your own photos and video. The quality of smartphone cameras rivals many professional cameras, so use it for more than food porn! Like I did here. I’m no Ansel Adams but I have no worries about copyright infringement. Plus it’s more personal though not always easy to come up with photo ideas for legal subjects!
Recommendations:
- NEVER simply copy and paste or download an image.
- NEVER use an image unless you are certain you have an appropriate license or permission.
- DON’T EVEN THINK ABOUT using an image someone posts on Instagram, Facebook, YouTube, Pinterest without confirming they took the photo and obtaining permission.
- BEFORE you apply a Creative Commons license to something you created consult with an attorney! Once you grant the Creative Commons license it is irrevocable, so understand what you are giving up!
A parting note. Copyright does not protect short phrases or titles to books or movies. Wait! Before you use “Star Wars” since it is just a “movie title”, remember it is protected by trademark! I’ll explain the difference between trademarks and copyrights in an upcoming post.
My next newsletter is where you get the details and tips to keep your business legal. The next one gives more detail about the Getty Images Demand letters and best practices for using online images, so sign up today if you want more tips on avoiding copyright infringement claims. Feel free to email me if you have any questions or topics you would like me to address in future posts.
Until then, Keep it Legit!
Bob
