Copyright is a private, transferable right which is automatically given to the creator of an image or other specific types of intellectual property – like literary or artistic works. Reproduction, publication, distribution or deriving from a copyrighted work without permission or a valid license is an offense. Copyright is a strict liability offense, and use of any imagery found online almost always and with very few exceptions must be licensed prior to use. Take note of the points in this guide when using images that are protected by copyright.
What is copyright?
FindLaw’s legal dictionary defines copyright as:
“a person’s exclusive right to reproduce, publish, or sell his or her original work of authorship (as a photograph, literary, musical, dramatic, artistic, or architectural work).”
The aim of copyright is simple: to protect creators from having their work stolen, copied, or reproduced without their permission. Copyright is automatically established at the moment of a work’s creation. A copyright notice is not necessary to establish copyright ownership, and neither is registering an image with a Copyright Office. Registering does grant additional protection in some countries, including the right to statutory damages.
Copyright covers a form of material expression (like a photograph) but not the ideas, techniques or facts behind the work. To put this in context, Artistic Licensing Magazine says:
“If, for example, a picture was directed very similar to the Abbey Road cover of the Beatles, where the singers are walking in a line, on a zebra crossing, dressed in contrasting formals, this might be an infringement of that copyright. Say, the suspected photograph is merely one of four men crossing a road on a zebra crossing, this would be the expression of a very common idea, not specifically the idea behind Abbey Road. However, if the photographer dressed his subjects in a similar wardrobe, shot the picture at the same angle, then this could amount to an infringement of the copyright on Abbey Road.”
As a person or party with a need to license creative content, it’s important to understand the basics of copyright to avoid the legal and financial repercussions of using a copyrighted work without authorization or a license.
Assigning copyright and licensing a copyrighted work
Copyright is a private right and it can be transferred between people. If copyright is assigned to someone other than the creator, the ownership of the copyright changes. Assigning copyright can be done in writing, and the document must be signed by the copyright holder. In some circumstances, an authorized agent can also sign on behalf of the creator.
When employing freelancers or paying for imagery to be created for business purposes (like a brand photoshoot), it is important to establish copyright ownership in the work contract before engaging the creator. If, for example, there is no mention of copyright ownership being transferred to the employer, the copyright for any images created for the purpose of fulfilling the contract may default to the image creator.
A copyrighted work can also be licensed. Licensing a work means that another person can use the work under certain predefined terms, but that the copyright holder retains ownership. Licensing is the standard way that images are made available for use.
Using a copyrighted image
Using an image that is copyright protected is by no means impossible – a license or other permission to use it simply needs to be acquired from the creator first. In most cases, using the work involves licensing an image through a third-party website, or contacting a work’s creator directly. Note that there are very few instances in which a copyrighted work found online is ‘free.’ If a work’s owner cannot be traced, choose another image – failing to understand the provenance of the work, or under which terms a work might be available for licensing (if any), highly increases the likelihood of copyright infringement. Despite any good intentions, simply hosting someone else’s work on a website without their permission (and in some countries even hotlinking to a copyrighted work) constitutes copyright infringement.
What is copyright infringement and why is it so serious?
Copyright infringement is the use of copyrighted work without permission, that infringes on the exclusive rights to reproduce, distribute, display and make derivatives of that work held by its owner. The amount of skill and craftsmanship that goes into intellectual property of any kind may be considerable; taking years of practice to acquire. Infringing on these rights is considered an offense and doing so may leave the image user having to pay damages to compensate for the creator’s loss.
Damages for copyright infringement vary from country to country. In the US, for example, statutory damages are set out in 17 U.S.C. § 504 of the U.S. Code. The basic level of damages for a timely copyright registration (work registered within three months of its original publication) are between $750 and $30,000 per work, at the discretion of the court. If the creator of the work can prove willful infringement, they may be entitled to damages up to $150,000 per work.
Using images on Creative Commons
Creative Commons is an online method of licensing images that allows image creators to stipulate how and where their work can be used. There are seven types of Creative Commons license. Unless an image is licensed under the license type ‘CC0,’ it is still protected by copyright and will require appropriate attribution within the framework of its individual license in order to be used legally.
Please refer to our extensive article on understanding Creative Commons licensing for further information on this topic or, for information regarding image attribution, please refer to our article on how to correctly attribute images.
Using copyrighted work on social media
When using images on social media the law still applies, like anywhere else. Whilst it is part of the functionality of most social media platforms to redistribute communications for all manner of accounts (share, retweet etc.), repurposing or reusing other’s work(s), especially for commercial gain, may well be considered copyright infringement.
The first act of Copyright was brought about by the statute of Anne, in 1709, to prevent anyone literally copying printed work for their own gain – following the much earlier invention of the printing press. Copyright became a globally recognized concept following the Berne Convention of 1886, and is still held in high regard, despite variations in concept and enforcement in different countries throughout the world.
Copyright in the internet age
Some would argue, the easy access to all forms of digital content has clouded our impression of what defines copyright, in the internet age. This, coupled with concept of ‘fair use,’ has left many with misconceptions about using images online. However, laws have essentially remained the same around the world – copyrighted work is not to be used without permission.
‘Fair Use’ is simply a concept which outlines limited exceptions to the rules governing the use of copyrighted material, including instances of research, teaching and comedic satire.
Finding the owner of a copyrighted work in your country:
Although copyright is established at the moment of a work’s creation, the following countries have centralized databases of registered works to facilitate finding and contacting the owner of a copyrighted work:
The United States of America
Visit: The US Copyright Office
Note: some other countries also use a US registered copyright registration as part of their legal process – Japan, for example.
While there isn’t a central copyright registration database in Australia, there are bodies representing artists and content creators for assistance in finding a copyright owner, such as the Australian Copyright Council..
Works do not require formal copyright registration, however, systems can vary from country to country. Visit https://euipo.europa.eu/ohimportal/en/home for more clarity, in individual jurisdictions.
- Using images means understanding the underlying principle of copyright, and respecting its importance.
- While it is possible to re-assign a copyright from the creator to another party, a right to use a work is generally issued under a license, allowing the creator to retain ownership.
- To use a copyrighted image, the conditions of use need to be adhered to – including use on social media and when taking work from Creative Commons.
- Failure to abide by licensing terms when using an image may result in legal action – especially if the image(s) in question is being used for commercial gain.
- If a work’s owner or license terms cannot be identified, do not use that work.