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Is That Online Image You Just Grabbed OK to Use?

Changing a Copyright Image Doesn't Make It Yours

The issue of copyrighting images has stirred a heated debate on LinkedIn.

The question that got the discussion started?

“I have been asked to take head shots and other portrait type photos for a new client, an entreprenuer. He wants these for his business card, possibly LinkedIn, and for his website. What kind of fees do some of you charge for full copyrights? I am most concerned with the images he wants for his website. What are the details, in regards to site usage?”

What started as a conversation about pricing quickly turned into a discussion about copyright.

With the spread of cameras and ubiquitous phone cameras — mixed with social media — the question of image copyright — is one that is asked by everyone and understood by very few.

Really, for the most part, the law is pretty simple. While there is one area — fair use — that is gray around the edges, much of the rest of copyright law is black and white.

  1. Did You Create It?

If you made the picture then you own the copyright. In the absence of a Work for Hire contract, you can do with it as you wish. While there can be exceptions, the rule-of-thumb is: you create it — you control it.

  1. Plagiarism

Visual Plagiarism is not a statutory predicament. It is a moral problem. Details  surrounding photo piracy may be connected, though. Copyright infringement is unlawful and provides for serious consequences. Avoid image plagiarism by giving attributing the image maker and providing credit.

  1. Attributing Alone Does Not Mean It’s Right

So you found a great image online and give the original artist a mention. Common sense should tell you that the artist may want exposure for the walk, but we’re discussing the law. Common sense and the law don’t always resonate together. It is up to the created to choose wherever — and if — they desire their image published. It isn’t up to you to examine why they don’t need “exposure.”

  1. Ask, Maybe Receive

The artist that files a DMCA Takedown might have agreed to a request for using it — if only they had been asked. People are reasonable, generally, and will consent to the use of their image. But the decision is theirs. Not every person will say go ahead.

  1. Use Public Domain Images

All problems can be circumvented if public domain images are utilized. These images are available to use and usually don’t require attribution. The site usually spells out the conditions of use. as well as the format to be used for requesting image use.

  1. Creative Commons

Be sure to understand the Creative Comons license. Many indiviudals are glad to assign their images, but they are allowed to choose. Understand that the image owner may amend the permission later, and that can trigger a demand for removal

  1. Different Uses — Different Obligations

While it might be reasonable to use a particular image on your website, the authority to use the identical photograph in a newsletter, book or video may not be available. Unless you are the copyright holder, or the picture is in public domain, consider the copyright holder’s guidance about using the image. The copyright owner may be ok with some applications, but not others.

  1. Fair Use is Foggy

Fair Use is a theory in Copyright law that says you’re entitled to encroach on somebody’s copyright, and they aren’t allowed to require payment from you. It sounds simple, but it is some of the more complicated aspects of Copyright law. Copyright Fair Use for images does occur, just not as most people would think.

  1. Assume

It’s better to assume that every image is copyrighted. The defense that the picture doesn’t have something to show copyright won’t work. The majority of works produced after March 1, 1989 do not demand notice., The absence of copyright notice has some thinking an image can be used without constraint. Actually, copyright regulations are blurry when it comes to social media. Search engines are giving their best to present copyright notice and if it applies, don’t pretend that it’s not there.

  1. Your Website, Your Problem

A common excuse when a site owner receives a takedown request is, “I didn’t pick that image”, and then try to blame the site’s designer. The website owner is rightfully accountable for breaches.

  1. Changing a Copyright Image Doesn’t Make It Yours

Changing an image, so it doesn’t look like the original doesn’t protect you from possible responsibility. A person cannot design fresh work and call it their’s if they don’t own the foundational copyright.  Adding a quote or line to a picture doesn’t void the foundational copyright either. Even using photo editing services to alter the picture to something you like better doesn’t release you from the possible sanctions under Copyright Law.

  1. But Bobby Did It

Just beause someone else does it, doesn’t make it right — or smart. Copyright law doesn’t mind if someone famous is diong it and avoiding any problems,. Copyright is personal, and a good bit of encorcement rests with the copyright holder.

Copyright law is complex. But a person doesn’t have to be an attorney to learn the fundamentals. When concerning images online, go with your intuition. If there’s any unease, then reconsider and do some investigation.

© 2012 Daniel Kron, Esq., all rights reserved


New York commercial litigator Daniel Kron, Esq - logo

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