Proper Use of Images Online

October 3, 2016

Is your business posting images on a social media account or on a website or blog as a part of your marketing strategy? If so, make sure you have the appropriate permission to post the images to avoid the prospect of a threatening letter (or worse) for a claim of copyright infringement.

Copyright law protects original works of authorship, including photographs and graphics. In general, the creator of the image owns the right to reproduce the image and publish the image to the public.

So if you didn’t create the image yourself, you should make sure that you have the right to use the image. This right could be obtained in a few ways – first, if the image is subject to copyright, you could obtain a license to use the image from the copyright owner. This could be obtained by contacting the owner, or if available, by purchasing the right to use the image from a stock images site. You may use images that are in the public domain, or that copyright has expired or aren’t subject to copyright.

Yet another option which may allow use of a copyrighted image would depend on the manner in which you would be using the image – this concept is called “fair use.” Fair use allows copyrighted works to be used for certain limited purposes. The fair use analysis is fairly nuanced, and involves consideration of the following factors:  the purpose and character of your 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. You may need to consult with someone familiar with copyright law to fully understand this analysis.

Even if you outsource social media and other internet marketing to an outside firm, you could still be subject to liability for their actions and must ensure they have the appropriate permission to use images, photographs or other content subject to copyright law.

If the above legalese has lost your attention, here are a few quick and easy ways to open yourself up to potential liability for copyright infringement:

  • Taking a screenshot of someone else’s image and posting it online, even if you give attribution
  • Searching Google Images (even images that are marked as “free”) for an image and using the image in a promotion
  • Repurposing photos from a photographer’s website without reading their license terms and conditions

If the copyright holder finds your infringing use, you will likely receive a takedown letter that could be coupled with a demand for payment and the threat of a costly copyright infringement lawsuit. The Copyright Act provides that unauthorized use is copyright infringement, and does not take into account intent for liability purposes. Further, if you don’t have the right to use the content you post on social media platforms, you are also violating their terms of service, which can result in removal of the content and, possibly, a notice to your followers that you’ve allegedly committed copyright infringement or a dead link, or suspension or termination of your account.

Therefore, if your business uses the Internet or social media, it is important to make sure you have the appropriate rights to use images posted online either by your staff or by a company on your behalf. An attorney experienced in copyright law can also assist you in determining the appropriate steps to take to safeguard yourself against infringement risks.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener University and sometimes wakes in the middle of the night in a cold sweat thinking about copyright infringement issues with online content.