Earlier this year, a client contacted us with a simple request: could we permanently remove a few images from their website?
The images in question were inoffensive enough, showing a public figure in various capacities. They had been posted some time ago by one of the client’s interns to supplement some of their content.
That intern’s innocent action ended up costing the client thousands of dollars in legal fees.
As it turns out, the photographs – like almost all images on the internet – were copyrighted. The difference here: the owner of that copyright was aggressively pursuing unauthorized use of the images, with the very real threat of a lawsuit.
Copyright is not something you can afford to ignore, especially when it comes to images on your website.
Here’s another real-life example: In 2019, when I was still a journalist, I got an email from a small business owner seeking help with a similar problem. In one of his company’s email newsletters, an employee had posted a nice photograph of wildflowers at a national park. Months later, he received a notice from a law firm, demanding payment for the unauthorized use of the image, or else he could expect to be served with a lawsuit.
It sounds like a shakedown, and it could be described that way. But, as I told the business owner, this act was perfectly legal, and the photographer who snapped the flowery landscape was well within his rights to do this.
How They Got Caught
In the internet’s early days, enforcing copyright online was nearly impossible. In order to protect copyright, the owner needed to find unauthorized use, then identify the website’s owner, in order to pursue legal relief. With millions of websites in many languages, this proved nearly impossible, and perhaps led to the cavalier attitude toward copyright that persists in the minds of many web-users.
Later, software developers came up with tools to “reverse search” the internet for a specific image. Among the first to do this was TinEye, specifically created with copyright holders in mind. By uploading an image, a TinEye user could query the web to find identical uses of the image, and determine how it was being used. Today, Google offers a similar service, alongside sophisticated counterparts like Pixsy.
The latter is worth your attention. Pixsy promises to “find and fight image theft” by automatically identifying unauthorized uses and initiating efforts to “recover money”.
Pixsy isn’t the only service like this. Various law firms also take up the practice; in both examples provided above, the website owners in question received notices from a law firm in the form of a demand letter. They were given a bleak choice: pay a lot now for a post-facto use of the images, or pay a lot more later in a lawsuit.
Isn’t This Blackmail?
It’s understandable that copyright owners would want to prevent big media from using their images and videos without permission. After all, licensing fees can be very lucrative when, say, a lucky photographer happens to get incredible video of a tornado ripping off a house’s roof, or a celebrity saying something regrettable in a restaurant.
You might not feel the same way about lawyers aggressively going after independent bloggers and small businesses who merely made careless mistakes. Again, in both cases mentioned above, neither party was trying to exploit the photos, resell them, or otherwise make some direct commercial gain.
The fact is, many of the images you see on the internet were captured by professional photographers: men and women who earn a living with their cameras. They are entitled to be paid for their work, whether it’s printed in a magazine or hosted on a website.
It’s unfortunate that a website owner can face stiff penalties for what seems like a harmless act, but copyright owners have a lot of incentive to aggressively protect their ownership. Otherwise, they’ll have a hard time defending copyright if they pick and choose which offenders to pursue.
What About Fair Use?
A common misunderstanding when it comes to copyright on the internet is what does and does not constitute “fair use.”
In spite of what you might have heard, “fair use” does not grant anyone the right to use a copyrighted work while merely offering attribution. In other words, simply putting “Credit to Jane Smith, Pro Photographer” in a photo caption does not protect you from possible legal action from Ms. Smith.
Social Media Examiner has a great write-up on copyright and fair use that you should read, but in brief, fair use can be summarized as the use of a specific video or image in a specific context.
The U.S. Copyright Act describes it this way:
…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.U.S. Copyright Act, Chapter 1, § 107
That’s still pretty vague, isn’t it?
Let me simplify it for you: unless the primary purpose of your website is providing news, education, product reviews, critical commentary, or research, you probably aren’t covered by fair use in most cases.
The Bottom Line
Images are crucial to the success of a website. Use them! But do not, under any circumstances, simply copy-paste an image you found via a Google Image Search or ripped from another website or social media post.
If you’re not sure whether you have permission to use an image, don’t use it.
Next week, we’ll take a look at some of the many free and legal ways to get great images for your website, as well as some premium options!
Recommended Further Reading
Fourth Circuit Rules Website’s Unauthorized Posting of Stock Photograph Was Not ‘Fair Use’