What good is a bunch of words on a web page without pictures draw people in? Compelling imagery is a must for your web presence. But there are limitations to what you can legally use on your site.
Let’s take a look at the basics of intellectual property rights, copyright law, and Creative Commons so you can find great images without risk of infringement or even outright theft.
Why to Use Caution When Using Someone Else’s Work
Can I use someone else’s work without having to go through a long permission process? Short answer: No.
Now, let’s dive into more detail as to why the dreaded ‘exposure as compensation’ is not enough for the creator of an original work.
What is copyright?
“a legal right existing globally in many countries, that basically grants the creator of an original work exclusive rights to determine and decide whether, and under what conditions, this original work may be used by others.”
While every country has its own variation of copyright laws, for the sake of this article we’ll be referring to the United States Federal Copyright Act of 1976 which states that all works are protected by copyright from the moment of creation. This is particularly useful knowledge when it comes to visual arts such as photography.
There is a common misconception that one must register their work with the US Copyright Office and/or place a copyright symbol ( © ) and watermark on a piece for this law to apply to them. In fact, as stated above, all work carries an automatic copyright upon creation. This means that all artists, composers, writers, and photographers own their work and that their content online is automatically protected by copyright. Content that isn’t your own, therefore, cannot be used without licensing and approval from the creator of the work.
For more on copyright law and your rights, see our companion article on intellectual property.
The Variations of Usage
Once you start to read up about all the different types of licensing–from music to photography to film clips and journalism–it can get quite overwhelming. It’s a bad idea to ignore all this and simply hope that the creator doesn’t find out that you’ve used their content without permission. Instead, let’s take a look at the basics of usage so you can protect yourself legally and financially.
Creative Commons is a global non-profit organization which provides a variety of licenses for creators who want to make their work available to the public while still retaining their copyright. If you wish to use to use a work with a Creative Commons license, you can do so without payment, but you must give attribution, or credit, to the work’s creator.
There are still a few variations within Creative Commons that a publisher must be aware of before grabbing that image off the Internet. CC licenses can include one or all of these restrictions:
- NC: Non-Commercial: You cannot use the image to make a profit, such as advertising your products and services.
- BY: Attribution: You must credit the creator and not crop out their watermark or place your own on top of theirs.
- ND: No Derivatives: You cannot alter the original work to create something new, or a modified version thereof.
- SA: Share Alike: A quid pro quo allowing a very permissive usage. You can modify the work, however, you must in return allow others to use and modify the work you create as a result.
It is important to bear in mind that if you use a CC work in a way that is not allowed under the specific CC license, your permissions are automatically revoked and the work is considered copyright infringement and subject to fines.
If the content is not licensed under Creative Commons, the owner of the work retains the legal right to control its usage and reproduction. To use such work, you will need to contact the creator personally and negotiate usage terms and fees. Such usage typically includes not only giving the creator credit but also paying for the right to use their work. If you do not negotiate a license with the copyright holder, they can sue you for damages, which would likely cost you far more than what the copyright holder would have asked had you requested permission in the first place.
In one high-profile example, a legal battle has been dragging out in the courts over Richard Prince, the infamous ‘appropriation artist.’ He is being accused of illegally appropriating Instagram photography for his own artworks which sell in the hundreds of thousands of dollars. This raises the question of usage when it comes to finding works on social media.
Read the Fine Print
Many small businesses and bloggers often find inspiration from images on Flickr or similar sites to use for their own websites. When you find something you like, read the bottom of the page. You’ll find the specific permissions there granted by the creator with a link to the legal details, so there’s no guesswork.
Here are a couple of examples of how people can reserve some or all rights to their photography on Flickr:
In the above example, the rights the photographer assigned are Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0)” as explained at Creative Commons. This particular license allows you to use the image for non-commericial purposes but you must give credit to the photographer if you do so.
Here’s another example from Flickr.
In this case, the photographer is asserting their full copyright protection and you may not use the image in any way without contacting the copyright holder (unless it falls under fair use—which, generally speaking, would not mean using it on your own blog or social media site.)
When it comes to Instagram, Facebook, and Twitter, each site has its own set of rules in the fine print. As a blogger or manager of a small business website, rather than go down the rabbit hole of each and every nuance in the Terms of Service, revert to the basic tenets of Copyright law and Creative Commons usage and you’ll be on solid footing.
Stock Media Makes Your Life Easier
Still a little confused about what you can use and when? Stock media takes the guesswork out of the situation. Stock photography, illustration, and video are excellent resources for finding high-quality, low-cost imagery to use on your website. You can license an image by paying a fee to the agency who will then pay the creator directly.
There will still be limitations and the stock agency will clearly state on their site if the image you’ve chosen is ‘Royalty Free’ or ‘Rights Managed.’
Royalty Free (RF) is a simple license that allows you to pay once and use that media without having to renew the license fee. Bear in mind, however, that ‘free’ in the title does not mean you don’t have to pay up front. Royalty Free is generally on the cheap side and should not cost more than $20 per image–sometimes even as low as $0.50.
Shutterstock and iStock are popular Royalty Free agencies that make it easy to find low-cost, good quality images with a dedicated search.
Here is an example from Shutterstock of an image that is royalty-free
Rights Managed (RM) is a license designed to fit your usage needs, and nothing further. Rights Managed stock imagery licenses tend to vary. These images are on the higher scale of content quality and usually professionally produced. Such images will cost anywhere from $30 to hundreds or even thousands of dollars, depending on what you need them for and the quality of the image produced.
Getty Images is one of the largest stock agencies in the world. With editorial archival images from major historic events and professionally produced fashion photography, you’re going to find some very inspirational works. It also means you’re in the realm of Rights Managed work where you can negotiate a specific price for your needs.
At Getty, you will need to purchase a license for each image, and the rate will be determined on how you plan to use it:
Once you click on “select options” you will get a form to complete that shows how you will use their image. You will be violating the license, and potentially committing fraud, if you list a purpose other than how you will be using it (for example, stating it will be on a blog when really you plan to use it on a series of coffee mugs).
Stock media takes the guesswork out of sourcing images, music, and video works by acting as an agent for the creator. If you’re on a deadline to use something interesting for your small business website and don’t have the time to chase down the author and negotiate a lot of back and forth about usage, stock imagery is a highly recommended solution.
How to Avoid Being Sued
Photographers and other creatives have ways of finding where their work is being used. From sheer accidental surfing to advanced AI crawlers, there are many resources for photographers to help find and recover stolen images. Do not ever assume your humble website or blog will get away with what you perceive as a small infraction.
The best way to avoid problems down the road is the simplest: ask permission. Reach out to the artist themselves and ask if you can use their work for your website. Can’t find the artist? Upload the image into Google Image search.
If you can’t find out who created this amazing work that you just have to have on your equally-incredible website which will give this artist a global audience via your brand, you’re out of luck. If you don’t hear back from the artist or agency, or you cannot find the source of media you wish to use, it is time to move on and look for something else.
Still Not Convinced?
A recent article from Slate.com covers a high-profile copyright lawyer going after large and small infringements. Richard Leibowitz is gaining notoriety and case wins for his clients throughout the United States. While he isn’t making any friends with his aggressive tactics, he is completely within the law to pursue violations and is seen as a champion of the photography world:
“Key to Liebowitz’s strategy is the pursuit of statutory damages. Under the Copyright Act of 1976, federal plaintiffs can be awarded statutory damages if they can prove “willful” infringement, a term that is not explicitly defined in the text of the bill. (“What is willful infringement? It’s what the courts say it is,” explained Adwar. Welcome to the wonderfully vague world of copyright law!) If a plaintiff had registered the work in question with the Copyright Office before the infringement occurred or up to three months after the work was initially published, then he or she can sue for statutory damages, which can be as high as $150,000 per work infringed. That’s a pretty hefty potential fine for the unauthorized use of a photograph that, if it had been licensed prior to use, might not have earned the photographer enough for a crosstown taxi.”
In the case of using someone else’s creativity for your own purposes, the simplest path is the best. Ask for permission first. It will make your life easier, and potentially kick off an ongoing professional relationship with the artist to use more media in the future. Err on the side of caution before uploading images online and you’ll never have to worry about takedown notices or bad publicity that could hurt your small business in the long run.
Read more on how to protect your own brand and intellectual property from copyright theft in our companion article.