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  • Jessica Fernández

The Myths and Truth About Online Images




The internet provides millions of photos that are out in the open for people to browse to their heart’s content. Does this mean they are free to download and use? The answer is no. Seeing a picture online does not mean that copyright laws do not apply.


Under US copyright law, the creator of an original work has the exclusive right to its reproduction, distribution, performance, and display, and to prepare derivative works. This law covers many types of creations, including paintings, photographs, illustrations, and many other types of works.


Although it may seem harmless to download an image from the internet and use it as your own, the legality and rights this implicates are more complicated than one might think. Downloading a photo from a search engine such as Google does not mean you can use it, because search engines do not hold the copyright to the images you may see online and they do not have the authority to allow their usage. The owner is the only one that could legally grant a license for the use of their images. Another common misconception is that if an online image doesn't have a copyright notice, the image has no rights, and it is in the public domain. However, there is currently no notice requirement for a copyright to be valid (except in some rare circumstances with works created between 1926 and 1989). Just as a house doesn’t become a public space for lack of notice of its private nature, an image does not enter the public domain merely because its author didn’t identify it as a copyrighted work.


How to legally use online Images?

There are many ways you can legally use a photo or image. Some of the most common are using stock images, images in the public domain, and images with a creative commons license.

STOCK MATERIALS

Stock images (music, videos, or other audiovisual content) are works that already have specific terms of use and need no negotiation between the owner, and you. These photos may come with licenses for personal or commercial purposes but it is necessary that you get permission for your intended use to avoid violating the terms of the agreement with the copyright holder. When obtaining permission to use stock material, you should always read the fine print to be aware of all the details of the license to protect yourself from potential legal issues. This is especially important when licensing footage or images that include people. Right of publicity, or right of image, is a separate intellectual property right from copyrights and you need to make sure that the site you are using requires the owners to submit talent releases when uploading works. Paid stock image websites like Shutterstock and Getty Images require model-signed releases for them to host the photos.

Licenses and prices will vary depending on the use the work will be given. For example, some licenses may grant the user permission to use an image as many times as they wish, while others may grant a more limited use. To determine which license you should acquire, make sure you understand the purpose of your use of the work. Will it be for personal use, for a client, or for media? Will it be for commercial use or not? How long will you be using the work? All of this is important information when deciding which license is the most appropriate for you.

CREATIVE COMMONS WORKS

Creative Commons is a non-profit organization that offers free licenses for the use of a certain intellectual property. The owners of materials upload them using very flexible licenses. The creators of images under this license have renounced all or some of the rights granted to them by copyright law, and this allows other users to modify or alter these images for their own creative purposes. As with stock materials, there are different types of licenses under Creative Commons so you can choose the most appropriate to fit your needs.

PUBLIC DOMAIN WORKS

Works in the public domain are content not protected by copyright law. This content can be used without permission of the original author because they no longer have any copyrights over their creation. There are many reasons why said content may fall into the public domain, some of them being:

  • Copyright protection has expired with the passage of time.

  • The copyright holder voluntarily released the content into the public domain.

  • The content was published before January 1, 1924.

  • The work was created during a period of time when the law required certain notices or processes and they were not properly included or done.

  • Or it never had a copyright, to begin with.

Is there a way to use a copyrighted image without permission?

The short answer is, yes, but only if it falls under the fair use doctrine. The term “Fair Use” is defined by the US Copyright law as “a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances”. Under fair use, a person may be excused from using someone else’s work without permission if it follows certain guidelines and it’s used for purposes such as educational, research, or personal use. Other purposes typically allowed are parody, reviews, commentary, or other transformative uses. One typical example of the application of the fair use doctrine can be seen in reviews of books, music, or movies, where the reviewer tends to use excerpts of the published works with the purpose to review and not to supplant the original work.

While it may seem straightforward, the reality of the matter is that even courts are not in agreement on what exactly may constitute fair use at any given time. Thus, we always recommend that a legal analysis be performed by an intellectual property attorney prior to the unauthorized use of any copyrighted work. This could ultimately end up saving you thousands of dollars in litigation fees. For more information on fair use, please visit https://www.copyright.gov/fair-use/.

It is important for any creator that intends to use images from the internet to understand the legality of copyrighted material. Always remember to do some research and educate yourself on this matter; it is better to be certain of what is acceptable and what is not, than risk having to pay the consequences after you have begun your project. When in doubt, always ask yourself: am I allowed to use this picture for this specific purpose? Get informed and you shall find your answer.

 

About the Author


Jessica Fernández


Jessica Fernández graduated from the University of Puerto Rico, where she completed a Bachelor’s Degree in Audiovisual Communication with a second major in Advertising and Public Relations. She has worked as Production Assistant and actor for different student and local short films. Ms. Fernández is also a fiction writer, and a singer and songwriter under the artistic name “Jess the Singing Alien.”


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