I’m going to preface today’s article with a quick disclaimer: I’m not a lawyer, nor do I play one on television. Please be sure to contact your lawyer or a legal service if you have questions about copyright, trademark, and using images you find on the web for your business website, social media pages, or other online properties.
Now that we have that out of the way, let’s talk turkey. There seems to be a misconception about images found on the web that just won’t die and stay buried. People frequently believe that you are free to use any image you find on the internet, be it from an image search, social media, or some other platform, for just about anything at all. The reality is much different: common law copyright protections apply at the very moment of creation, and limit how and when you can use images – especially without permission.
Before you dig up the first “free photo” website and start cobbling together images for your new company presence, have a look at this article. If you’re already aware of the laws, this should still be a much-needed refresher.
Images and Copyright
The photographer or owner of an image retains all copyrights to that image. The owner can publish it on the web, in a book, or in any form they’d like, with or without attributing it by name. They also maintain the right to create derivatives, sell their work product, rent it out, or display it. Basically, the owner can do whatever the heck they want with it.
The only exception here is true fair use, the definition of which also seems to be fuzzy to a lot of people. Fair use only allows you to use a photo for “criticism, commenting, teaching, scholarships, research, or news reporting.” Most people who claim “fair use” of photos on the internet are misinterpreting the permissions granted, and are actually using the images far beyond the scope of the definition.
Reviews are a great example of permissible “fair use.” Let’s say you purchased an ebook and want to review it on your blog. You might go to the writer’s website, find a picture of the book cover, save it, and use it in your review. The photo doesn’t preview the actual text of the book, so it won’t have an impact on the creator’s rights. This is a legitimate form of fair use, especially since you’re delivering criticism (good or bad) of the book.
But fair use can be much more restrictive. As noted, the photographer has the right to sell full or limited-use rights to their work. That’s why photo studios will sell you a disc with a limited release; even though they took the snaps of you, they still technically own the photos. They just give you permission to print them and use them within their license.
This is also the case in the commercial world. A freelance web designer may come to your business, take photos of your product, and include the rights to those photos in your contract. You’ll need to read and understand the terms to ensure you’re protected.
What action or license a photographer or image owner takes if and when you steal their images really depends on their preferences. Some will simply ask you to remove the image; others will ask you to pay a small fee toward their sales pages. Some will report you to your hosting provider and have your domain and hosting account suspended, while others will jump directly to a lawyer, demand money for damages, or even start a high-stakes lawsuit.
Intent and Copyright
Most bloggers and website owners don’t intentionally use images illegally. Many are genuinely misinformed or misinterpret their rights to use what they find. That said, a lack of intent isn’t a legal defense; you can still be charged or sued for using images that don’t belong to you.
Take, for example, the story that Chrystie of Living for Naptime shared on her blog. She took what she believed to be a simple image of a green pepper from a Google image search and placed it within a blog post. Eight months later she received an email from a lawyer with a huge legal attachment. She thought she needed to simply remove the image from her blog – but the photographer wanted “damages.” He was selling the image for $750 on his website. After just eight months of illegal use, he calculated those damages at an insane rate of $7,500!
This story is a bit more complicated. Chrystie’s research showed that the photographer was distributing his images and building links so they’d show higher in search engine image results. She believes he was monitoring the web for his images, and that the photographer was intentionally trapping people to sue them. And the frightening thing here is that this is not only a highly common tactic, but also perfectly legal (albeit totally unethical).
When Chrystie did speak to a lawyer, he told her to settle. If not, her court costs may have skyrocketed from just $7,500 to as much as $50,000 to $100,000. That’s one expensive mistake you don’t want to make. Ouch!
What About Memes?
You’re not going to like the answer to this question. Technically, a meme is derivative work, and copyright law says that only the original owner can create a derivative. That said, a lot of people who create memes do so with the intent of making them fair use, but there really isn’t a clear way to find that out.
I hate to burst anyone’s bubble, but memes definitely fall into a very grey area. Were they created as satire? If so, they may be protected. Will you make money sharing them? If not, you might be OK. Can sharing the meme cause damage to the copyright holder or to the brand features within it? Maybe, maybe not. The safest thing you can do is not share memes (and/or create your own).
If you’re insistent on using memes anyway, use them in a limited fashion. Using an extremely common meme once on a Facebook page is probably less risky than littering your website with memes the moment they come up. Try to include a credit with a link whenever you can.
Where to Find Legal Images
You have two options for finding legal images for your website or blog: stock image sites or royalty-free image sites. Here are a few sites with totally free images:
These sites are relatively reliable, but you should be aware that there have been instances where stolen images made it onto the platform. Consider them mid-risk.
If you’re not keen on taking any risks at all, buying royalty-free images from a stock image marketplace is much, much easier. Sure, you will pay a small fee to use the images, but because you have a license, you will also have a defense. Options include:
There are dozens of other choices in both categories, but these will get you started. No matter where you explore, it’s good to be aware that some sites are better for deep niches than others. For example, Pixabay has a large library, but the photos are relatively generic. Unsplash is great for very natural looking models and gorgeous background landscapes. Most paid sites have extensive libraries, but the one you end up using will most likely depend on your budget.
This bears repeating: when in doubt, always consult a lawyer. A short call or email to your retained legal counsel or service will ultimately cost you a whole lot less than damages if you are sued. Just don’t take the risk!
Eric Sachs
SEO virtuoso, CEO @Sachs Marketing Group. Focused on being of service to business owners - helping to better position them in the eyes of their audiences.
