The Myths of Copyrighted Internet Images

This is an extremely common myth. Copyright was originally created in order to allow individuals the freedom to share, distribute, and inspire others—yet, still protect their rights to their own creative work. Although the internet has significantly changed the media in the last couple of decades, creators still have the same rights to their creative works as if they were printed. Just because it’s public, doesn’t mean that you have rights to any image you find on the internet.

A copyright symbol used to be required in the past, but—since March 1, 1989—it’s no longer required (an effect of the Berne Convention Implementation Act, Copyright Law). The moment you press the round camera button on your iPhone, draw a doodle on your iPad, or snap a photograph with your digital camera—it’s yours—and it’s copyrighted. From that very moment, you are the only one who has the legal right to reproduce or publish your work (Merriam-Webster).

According to Section 504 of the Copyright Act, even without a copyright symbol, an image is still subject to copyright law. In fact, if you decide to use an image without permission, you could pay anywhere from $750 to $30,000—not to mention other court fees.

However, if a copyright symbol or watermark is present and you infringe upon that work, it’s considered intentional and you could pay upward to $150,000 (per infringement) in court—yikes!

Some sites such as Creative Commons allow users to search for images from owners that have given some level of approval to use, build upon, or share their images. These often require attribution, linking back, and permission. However, It’s probably best to assume all images are copyrighted—symbol or not.

Say someone were to sneak into an art gallery, snag a beautiful painting off of the wall to put in their own gallery. They state the name of the author upon displaying it. Does this make it right? Unfortunately, whether you give attribution or not, it’s still considered illegal to use an image without consent.

Fair use is a very complex doctrine (United States Copyright Office) that basically gives you the “right” to break the law under certain circumstances without consent or any disciplinary action. Under a court of law most “circumstances” that allow for fair use apply to very few, and they are usually ruled in a court of law. So, it’s best to really take into account why you’re using a copyrighted image without consent or contribution.

In ordered to be considered “fair use” the following must be examined:

• Purpose: If you’re using an image for research, schoolwork/education, news reporting, parody, or commentary—you’re on the path to fair use. However, more often than not, the use must be for nonprofit purposes. If your company is for-profit, you might want to reconsider. According to Nolo—an educational, research, or other use that is for commercial purposes may not be considered fair use.
• Nature: What is the nature of the use? For entertainment or advertising purposes? If it’s solely for entertainment, then you’re weighing towards the general public’s interest—which is more likely to be in favor of fair use. If you’re advertising your services or products, you’re likely receiving some sort of compensation (or were intending to), which would not be considered fair use. (Again, commercial use rarely ever falls under fair use.
• Amount: How much of the image are you using? A small portion? If you are using a small area of the image, you might be within fair use guidelines. Beware: the courts may rule against you if the section used seems to represent the most significant part of the piece.
• Effect: Know the effect on the potential market value. If you are preventing the creator from obtaining their profits or recognition, you might want to think twice.

In my opinion, it’s simply not worth the risk to assume fair use. Images are out there for you to use—just in the correct manner. Always be mindful of copyright practices, get permission from the owner, give credit, purchase it, and use it in a responsible manner. After all—photographers, designers, musicians, videographers, and artists alike make a living off of their creative works. Like many other professions, creatives put their heart and soul into their work—it’s, in a way, a part of them.

Something many of us often forget or don’t think about is that not everything you do on the internet goes unseen. An image that was wrongfully used can come back to haunt you months or even years down the road. Believe it or not, there are lawyers that specialize in copyright infringement cases.

So, what could happen? If you’re found guilty of infringing upon someone else’s work, you’ll most likely get a DMCA Takedown notice first. Under the Digital Millennium Copyright Act (PDF), the owner of the creative work may request a DMCA Takedown notice, which then will notify you of the takedown. If you don’t comply, your site could be taken down without any further notice.

Unfortunately, even if you’ve taken the image down after receiving the takedown notice, you still could get an “Infringement Letter” (Cease and Desist Letter) from a lawyer and be taken to court. This could cost your company anywhere from $750-$150,000 per infringement, plus court fees (as mentioned in myth #2).