Steal this Picture, I dare you!

by Michael Haberman on December 11, 2013 · 2 comments

 

Just because you can copy it on the Internet does not mean you have the right to do so.

Just because you can copy it on the Internet does not mean you have the right to do so.

I once learned a lesson about copyright infringement, a painful lesson. I needed a minefield picture for one of my blog posts. The minefield was a metaphor. I went to the Internet and found one. It did not appear to have a copyright so I used it. Several months later I got a letter from a corporate attorney telling me I was using their photo illegally since I had not purchased the license to the picture. They wanted money, a pretty substantial amount. Here is a lesson for anyone in HR or blogging on using pictures and other material found on the Internet.

Even bigger money

I was not happy about having to pay for the use of the picture but at least I did not have to pay $1.2 million for my copyright infringement. According to attorney Susan Neuberger Weller of MintzLevin, a New York court found Agence France-Presse and Getty Images Inc. guilty of willful infringement of copyright with eight photos they had published. Photographer Daniel Morel had published 8 photos of the Haiti earthquake in 2010 via Twitter. Someone else reposted these and they got picked up and posted by AFP and Getty.

I am not going to repeat all the judicial wrangling that went on, you can read that here. But suffice it to say that the court and a jury found that the two organizations had violated the copyright and subsequently had to pay a combined $1.2 million for their use of these photos.

What are the rules?

So if you can’t just snag a photo or a cartoon off the Internet for use on your blog, or website or company newsletter, what are the rules? The rules revolve around some key terms. These are ownership of the copyright, work-for-hire, public domain, and fair use.

Ownership

According to the law, copyright is granted automatically when an original work is first “fixed” in a “tangible medium of expression”, which today includes the Internet. A copyright does not have to be registered, though that is suggested because it helps the author protect the copyright. Ideas and facts cannot be copyrighted but the original aesthetic expression of those ideas and facts can be. The author owns the rights to allow others to use the work, distribute the work, display the work and allow others to perform a work. Typically there is a fee of some sort that must be paid the author or the author’s agent for the use of the copyrighted work.

There is an exception to this ownership and that is called the work-for-hire provision. This means that someone who is hired to produce a work may not own the work. It is owned by the entity that hired the person. Sometimes this is an employee, sometimes it is an independent contractor.

Public Domain

You can use material that has been covered under the concept of the “public domain.” Basically it can be used without payment. Anything produced by a government entity is in the public domain since it is the tax payers that footed the bill and thus we all “own” the work. Other items fall into the public domain as well, but that list is too long for this blog. You can find all items under the public domain as of 2013 by looking HERE.

Fair Use

There is a concept called fair use that protects you in some incidents of using someone else’s work. There are no “set in stone” rules but generally what is considered is:

  • The purpose you are using it
  • The nature of how you are using it (book reviews or parodies have more protection, versus just copying pages.)
  • The amount of material or percentage of material used
  • How often or how much you use it
  • And whether you are denying financial gain to the author by your use.

Sara Hawkins of the Social Media Examiner has a superb guide called Copyright Fair Use and How it Works for Online Images. This is well worth reading. In particular to the point of my post she says “If you’re using a thumbnail and linking to the original location, there is greater likelihood of finding fair use than if you just post the original image.”

The Digital Millennium Copyright Act

Just because it has been posted on the Internet does not make it fair game for use. There is a law called the Digital Millennium Copyright Act (DMCA) that dovetails with existing copyright law around the world and protects the original works of others. You may want to download this summary so that you understand that complicated arena.

As to my situation I was able to negotiate with the copyright owner and I ended up paying a reduced fee. However, it taught me a lesson that I have paid attention to for at least four years now. As attorney Weller concludes “…just because you can copy something available on the Internet does mean you have the legal authority to do so. Consider yourself warned …”

Image courtesy of Stuart Miles at FreeDigitalPhotos.net

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