31 Aug
2013

Copyright and the Web: Internet Images Are Not Free

http://www.dreamstime.com/-image2748753

Image purchased from istock.com

Attorney Paul Lesko writes about the copyright issues that surround using images from the Internet in blog posts.

It happens a lot. I’m out with friends, and someone mentions I’m an intellectual property litigator. Someone then invariably says they are rampantly violating someone else’s copyright.

It’s not said that way; it’s more innocuous…something like, “For my website, I use images that I find on others’ websites.”

I hear this, cringe, then suggest they should not do that.

The normal response: “The images were on the web…so they’re free.”

Ugh, no. In fact, you’re probably violating someone’s copyright. Unless the works are from a depository of public domain images, it’s best to consider everything on the Internet as copyrighted.

“But they didn’t have a copyright notice.”

There is no requirement to give a copyright notice; it’s still infringement.

“I did not know I was violating copyright law, so I’m innocent.”

Wrong again. Ignorance is not a defense.

“They’ll never prove I did it.”

Not so. Proving copyright infringement for Internet images is easy. Basically, all a copyright owner’s attorney needs to do is walk to the jury box and hold up two pieces of paper: one, showing the copyrighted image, the other, the image from your website. Since both images are likely identical, you’re in trouble.

“I have a ‘fair use’ defense.”

This makes me grind my teeth and want to ask, “Do you even know what the ‘fair use’ defense is?” But I don’t. I just explain that the fair use defense is complicated, involves multiple factors, and is inconsistently applied by courts. So, relying on a “fair use” defense as a get out of jail card is a bad idea.

“Well, if I did commit infringement, it can’t be worth that much because I didn’t make money from the image.”

Yikes. The Copyright Statue allows for two types of damages: 1) actual damages (e.g., lost sales) or 2) statutory damages of “not less than $750 or more than $30,000.” And those damages can be multiplied if you’re found to be a willful infringer. Sure, you may have made “no money,” from that image, but it could still cost you a lot of money.

“The Internet is a big place…I’ll never get caught.”

Not really; you’re just a search engine away from being found. There are companies that create the ability for others to search the web for images. It’s just like Google, except instead of typing words, you just paste the picture. So, actually, it’s surprisingly easy to find infringers.

And it’s never a good defense to say, “I never thought you’d find me!”

By this point, I’ve depressed the person I’ve been talking to, and normally have been anointed “Captain Buzzkill.” But, I mean well, so, I give the person the best advice I can give: treat all Internet images like they are copyrighted. If you want to use one, if it’s not expressly in the public domain, you need to pay for it. If you don’t want to pay for it, start from scratch and make one of your own.

And when you realize you can’t make an image you like, you’ll realize that’s why you should pay for it.

 

About IP Attorney Paul Lesko

SimmonsPaul Lesko is a shareholder at Simmons Browder Gianaris Angelides & Barnerd LLC and the chair of its Intellectual Property Department. Don’t hold the fact that Paul is a lawyer against him. He’s also writer and an avid baseball card collector. He has published articles in top industry publications including The Columbia Science & Technology Law Review and is a blogger on intellectual property topics for the online magazine Cardboard Connection.

Paul has also provided expert legal analysis in national leading publications including The New York Times, PC World, American Legal Magazine and Chicago Lawyers Magazine. He has also spoken about copyright issues during the Missouri Writers’ Guild Annual Conference, and at MWG chapter meetings of the St. Louis Writers’ Guild and Saturday Writers. Paul can be found on Twitter @Paul_Lesko.

11 Comments

  • Paul,
    Thank you so much for this post. It’s an eye-opener. One question for you, If you have a chance to answer questions for us: When a photo is listed in Creative Commons in something like Flickr.com and it says that you must attribute it in order to use it, is it good enough to post the photo, then post the user name of the person who took it, and then the website where you found it: Flickr.com OR should you post a link to the photo on Flickr.com? Thanks for your help.

    • Your question gets the most commonly uttered lawyer response, “It depends.” I answer that way because if a user posts a photo “for sharing” so long as they get attribution, but then does not define what constitutes attribution (either expressly or through the website’s terms of service)…it’s certainly a gray area. In cases like this, I’d err on the side of caution and put the name and link to the photo. It’s likely overkill, but better safe than sorry.

  • Good information! I don’t have a blog or website but do use photos for print media. 99.9% of the time I use photos we have taken or paid stock photos, but have used google images a few desperate times. I think I’ll be more diligent about getting them from a public domain source. Thanks!

  • This is why I try to use my own pictures, create my own, or just go without. As a technology teacher to elementary students, we discuss this issue a lot and they are shocked and amazed that they or their parents could get fined for copyright infringement. It is hard to find good public domain material out there, but it is out there. You just have to work harder.

  • A few years ago, early in my blogging career, there was a blog post circulating in which a blooger begged others to heed her cautionary tale. She had been sued for using copyright photos. It was an expensive and sad lesson for her to learn and she generously allowed us to learn from her.

    I immediately removed my “borrowed” photos and now use my own. Phew. I often wonder about sites like Pinterest whose whole premise is posting borrowed sites, photos, recipes etc.

  • Janet and Shelby: Thanks for sharing your experiences and for visiting here today with Paul’s post. It looks like the theme is: you have to keep searching until you find something that works and is not copyrighted (or ask for permission!)

    Julie: I was going to ask Paul about Pinterest too. I know there was a big to-do over that for a while. But most people want photos and images on Pinterest with a link and description to how other people can find more. If there’s a Pinterest button on someone’s sight, should we assume that it’s okay with them that we pin things we find on their site to our boards?

    • A Pinterest button MIGHT be an indication that the site owner is OK with you pinning things from the site…but, I’d still be hesitant to do so because a Pinterest button is just a button. I’d feel much better with express permission from the site granting permission for others to use the images.

      More troubling is it’s possible the site owner might not have permission to use the images on his or her site. If that’s the case, and you pin/copy his or her “borrowed” images, then you could get caught in a web of infringement that the site owner started.

      • The implications of what you’re saying, Paul, is discomforting. I think it goes back to what you talked about before during your copyright presentations at guild events: it depends on the level of risk you’re comfortable with.

        For me, I’m much more comfortable with the level of risk of “pinning” something from a site that has a “pin” button on its content vs copying an image from someone’s site via Google images. That I would never do on purpose. Not just because of the infringement risk, but because of the lack of respect it shows the person who created the image.

        As someone who expects to get paid for the quality of my writing, I feel its important to pay a designer/photographer for their work as well. Or, at least, use my own! :)

      • This is CRAZY stuff, Paul. I’m sure your job gets busier and busier and more and more complicated all the time! Thank you for all your help and knowledge with this.

  • Great information! I never knew – until Geeky Lady told me :) Now I only use my own pictures.

  • Paul (and Geeky Lady) thanks for the post. It’s great to know.

So, what do you think?