What was once a web filled with code and scrolling text, the Internet is now the world’s largest conglomerate of images. And as visual content continues to rule, the number of images available online will only grow. But just because you can Google an image — and technically copy or save it — doesn’t mean the web is a free-for-all of visual data. Photographers and designers need to put food on the table. If every online image was available for free, there would be a lot more starving artists. Fortunately for them, copyrights apply in cyberspace just as in print. And anyone using an image without appropriate rights and permissions can find themselves in plenty of hot water.
Understanding the ins and outs of image licensing and usage can save digital marketers, web designers and other content curators from unnecessary penalties, ranging from cease and desist notices to lawsuits and financial demands. Want to be sure you properly use images in your online content? An ounce of prevention is worth a pound of cure. Just follow our five simple steps, and you just might save yourself a load of legal trouble.
Understand Types of Image Licenses
Unless you’ve taken the image yourself — someone else owns the rights to use it. Whether the copyright owner provides free reign of the image’s use — or allows it for a fee or under certain circumstances — varies widely across the industry. Still, savvy publishers understand exactly which images they can use and under what instances. The first step is understanding the different types of image licenses:
- Flat Fee – Also known as contracted work, a flat-fee license relates to a single photo that is licensed and intended for one user.
- Rights Managed – Refers to the purchase of a photo which can only be used one time and as specified by the license.
- Royalty Free – The royalty-free licensing model is the most popular type of license for stock photos and often the most affordable, although royalty free should not be confused with free from cost. Instead, the term refers to the absence of additional royalties for additional uses of the image. The only cost variable is generally the size of the image or image file provided.
- Creative Commons Licenses – The Internet is full of amateur photography. But amateur doesn’t mean without copyright. To help manage the sharing of copyrighted work, Creative Commons licenses were developed. The licenses allow copyright owners to freely share their work, but control the conditions under which it is used.
Correctly Use Creative Commons Images
The Creative Commons organization manages six types of licenses that vary in their openness of use, ranging from allowing any type of use as long as the creator is attributed to only allowing personal use of the original work. Each of the license types were written in conformity with international copyright treaties and adapted to the local laws of more than 50 countries. When choosing free stock images licensed by Creative Commons, users should be aware of the six Creative Commons licenses, including:
- CC BY – attribution
This license allows others to distribute, modify and adapt the image, even commercially, as long as the copyright holder is credited. - CC BY-SA – attribution, share-alike
The license allows others to reuse, modify and adapt the work, even for commercial use, as long as the original copyright holder is credited, and any new creations are shared under identical terms — i.e., share-alike. Often compared to open-source software licenses, any new works that use any part of the original image must carry the same Creative Commons license. CC - BY-SA is most-commonly associated with Wikipedia.
- CC BY-ND – attribution, noderivs
This license allows for the redistribution or content — whether commercial or noncommercial — as long as it is used unchanged and in whole, and the original copyright holder is accredited. In other words, no derivatives of the original work are allowed. - CC BY-NC – attribution, non-commercial
This license allows others to use, modify and adapt works for non-commercial purposes only, provided the original creator is credited. Any new works that use any part of the original work must also be attributed to the original creator and be used non-commercially, although they do not have to license their own derivatives on the same terms. - CC BY-NC-SA – attribution, non-commercial, share-alike
This license allows others to reuse, modify and adapt works for non-commercial use, as long as the original copyright holder is credited and new creations are licensed under identical terms as the original. - CC BY-NC-ND – attribution, non-commercial, noderivs
The most restrictive of the Creative Commons licenses, content can be downloaded and shared with others as long as the copyright holder is credited, but images cannot be changed in any way or used commercially.
Utilize Images Within the Public Domain
Although it’s not a license, per se, public domain makes up a large portion of stock images. As the name suggests, the copyright is owned by the public, and images are free for anyone to use, reuse, modify, adapt and distribute. While the images are copyright-free, it’s still professional courtesy to attribute the work’s original creator whenever possible. Works can be part of the public domain in three instances:
- Their copyright has expired. In the United States, any work published anywhere in the world prior to Jan. 1, 1923, is in the public domain. Other countries may follow different policies on length of copyrights.
- They were released into the public domain by the copyright holder. In such cases, the copyright holder needs only release their work with an accompanying statement releasing all rights to the work. Images licensed under the Creative Commons CC designation are released to the public domain.
- They are ineligible for copyright protection. In the United States, works created by a government agency are not eligible for copyright protection and can be used by the public. Content that does not rely on human creativity is also ineligible for copyright. A list of bare facts will belong to the public domain, while an article based on those facts and an infographic referencing them are both copyright protected.
(Note: If a government agency hires an independent contractor to produce documents, graphics or any other content for their site, the contractor may own the copyright in his or her work, unless he or she assigns the copyright to the government. In either case, the work is not eligible for copyright exclusion.)
Understand Types of Image Uses
Identifying the types of image licenses is only effective if a user also understands the ways in which content can be used. Using an image that is licensed for non-commercial use in a business context can bring negative consequences, just like failing to pay for its use.
What is commercial use?
As previously mentioned, some licenses allow the reuse of images for non-commercial purposes only. But non-commercial is a broader category than the name may suggest. Obviously, the use of content for any for-profit advertising and marketing purpose is commercial. But so is creating an internal company brochure, updating a blog and creating a social media profile. A blogger who doesn’t sell ads or make any profit may be able to claim non-commercial use, but only if no type of commerce occurs or even appears on the website. If anyone is financially profiting from the content in any way, it’s almost certainly for commercial use.
What is non-commercial use?
So what types of use are considered non-commercial? Some images are released for editorial use only and only can be used to illustrate news-related stories. U.S. Copyright Law also allows copyrighted materials to be used in the course of face-to-face teaching activities, so teachers and students can use copyrighted images for classroom presentations, assignments and learning aids. Non-profit organizations can also use images non-commercially to request donations and promote events.
What is Fair Use?
Fair use is a doctrine originating in U.S. law that permits limited use of copyrighted material without permission from the copyright holder. The copyright limitation is intended to balance the interests of copyright holders with the public interest by allowing certain limited uses that could otherwise be considered infringement.
U.S. courts have cited as examples of fair use such as commentary, search engines, criticism, parody, news reporting, scholarship and research. Unfortunately, the doctrine still leaves a giant gray area and there is never a guarantee that your use will qualify as fair. In fact, the only way to get a definitive answer on whether or not a particular use is “fair” is to have the issue resolved in court. The qualify as fair use, courts examine four criteria:
- The purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes
The nature of the copyrighted work — courts grant more leeway to copies of factual works such as biographies than from fictional works such as plays or novels. - The amount and substantiality of the portion used in relation to the copyrighted work as a whole — sometimes the amount of material copied is so small the court permits it without even conducting a fair-use analysis.
- The impact the use bears upon the potential market for or value of the copyrighted work — whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work.
- To get a better idea if the use of a specific image may be considered fair, you can also fill out the checklist above.
Since there is no arithmetic method for determining fair use, these should be used as general guidelines in your fair use analysis and do not, by any means, constitute legal advice.
Avoid Penalties for Copyright Infringement
Copyright infringement occurs when any party uses a whole or part of an image without permission, beyond the scope of a permission or license, adapting the image without permission or even asking another artist to identically recreate the image.
It’s a crime, and it can occur even unintentionally, which is why understanding image licensing and usage rules is vital to today’s digital marketers and visual content designers. If a website designer is hired by a company, and that designer steals images without the company’s knowledge, everyone is still guilty. Those who break copyright law can incur monetary damages, lawsuits, costly legal fees and even criminal charges, depending on the severity of the theft. As with most of life, an ounce of prevention is worth a pound of cure.
[Samantha Lile is a successful journalist and web content creator who contributes to various web publications: samanthalile.carbonmade.com]