Have you ever snagged an image from Google or Bing and used it in your marketing? If so, you may have just infringed on a creator’s copyright. While it may seem harmless, sharing content you find online – even if you manipulate it – can be a recipe for disaster for you and your brand. Not only can it potentially damage your reputation, but it can also wreak havoc on your bank account should you find yourself on the wrong end of a lawsuit.
The good news is it’s relatively simple for companies to comply with copyright laws – and we’ve partnered with Intellectual Property attorneys Ticora Davis of The Creator’s Law Firm and Tyra Hughley Smith of Hughley Smith Law to put together a few tips to help you do just that.
Who Owns the Content I Find Online?
As a general rule of thumb, you should assume that any content you did not create is owned by someone else and is copyright protected. Copyright protection begins the moment an original creation is made, whether it’s written text, audio, an image or even a sculptural work. Copyright laws also protect unpublished works, as well as anything made available online via a website or social media page. Even if a creator isn’t directly asserting one’s copyright to an image by placing a watermark or name stamp on it, the image is still protected under copyright law.
So all you have to do now is attribute the source, right? Wrong! According to attorney Ticora Davis:
“There is a common misconception amongst individuals that in sharing photos found online and providing accreditation to the source, they’ve satisfied all that is legally required. Unfortunately, crediting the source of the photo is not the answer to avoiding copyright infringement. To avoid the risk of a lawsuit, an individual should either take their own photos, which can be difficult for an untrained photographer to do, or purchase stock photos from a reputable company, such as Mocha Stock. Doing so will result in a polished presentation and security in knowing you have the right to share the images in question.”
What About Fair Use and Public Domain?
When considering whether a copyrighted work qualifies for fair use, there are four requirements that should be considered:
- the purpose and character of use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken, and
- the effect of the use upon the potential market
For example, under educational fair use rules, a teacher may be able to use a handful of images from a collection in his or her classroom instruction without infringing on the creator’s copyright; however, a brand owner using those same images would be infringing on the creator’s’ copyright if they chose to incorporate them in a marketing brochure promoting their business. When in doubt, it’s best to review the intended content and use with an intellectual property attorney to protect yourself against infringing on a creator’s copyright.
The rules for public domain use are a little more straightforward. In most countries, works created after 1978 have copyright protection for the life of the creator plus an additional seventy years after they pass. Even still, an individual image that is eligible for public domain use might also be a part of a copyrighted collection. As a result, researching whether an image or other creative work is public domain can be tricky. Tyra Hughley Smith shares:
“It is important for businesses to know and understand that just because an image appears on Google does not mean it is in the public domain. In order for a work to enter the public domain, certain formalities are required. Google is a search engine, and it aggregates instances of something on the web. That does not mean that it is in the public domain, merely that it is on the Internet. Just as the work on your website appears on the web but is not subject to public domain, the same applies for images. I also caution people to be very careful about where they obtain “free” stock images, because if the site is not reputable, the person posting the image may have no rights to do so. You are in a “buyer beware” situation when you use free sites that are not reputable and could be based in foreign countries, where you would have no recourse. It is best to pay to use images and keep records of your licenses, or get them from extremely reputable sites. Just as you expect to be compensated for your work, so too do photographers.”
Ok…So What Do I Need to Know About Licensing?
If you’re looking to use images in your marketing, using stock may be best way to go. When you obtain stock imagery from a reputable site, you’re licensing it, which means that the creator has given you permission to use their images. It’s important to note that there are different types of licenses. The most common types are:
Creative Commons – When a creator wants to allow people to widely distribute their work without compensating them for using it, they’ll utilize a Creative Commons license. It allows the creator to give standardized permission to use their work. These licenses require that you acknowledge the creator and sometimes restrict commercial use. You can learn more here.
Standard Licensing – Many creators make their livelihood by creating – so when you use their work without permission, you’re essentially stealing from them. Some creators are ok with people distributing their work, however, they want to be compensated for its use. When you purchase a standard license, the creator is giving you permission to use their work in your marketing – with some limitations. For example, there might be limitations on how many brochures you can print if it uses an image you purchased with a standard license. Also, you’re often restricted from using the image on any items that you sell.
Extended Licensing – As it sounds, an extended license gives you extended permissions for how you can use the creator’s work. For example, you may be able to use an image you’ve purchased with an extended license on merchandise you sell and make money on, such as a t-shirt, mug or calendar.
In short, you want to get permission any time you use another creator’s work – and that’s what copyright law is all about. This article is not intended to be an exhaustive overview, but rather give you a few tips and best practices for using images in your marketing. Got additional questions? Feel free to ask them in the comments section below.