Our knee-jerk reaction to the question of using images from the internet is to say, “No! Don’t do that!” We lawyers have a way of jumping to the worst-case scenario.
The reality, we know, is that using free images found online feels like the most ordinary thing in the world. When content is king but budgets are not always kingly, creators are always looking for affordable or free sources of good online images and video to help make their work pop.
However, while everyone may be using online images, not everyone is using them properly. In fact, a recent study estimated that “of the 3 billion images shared on the internet daily, around 85 percent are used without a valid license.” This study also found that more than a fifth of all worldwide infringements occur within the United States.
Once in a while, someone even gets sued. While bigger companies may be able to afford to argue over who’s right, the question for most small businesses isn’t who’s correct—it’s how to avoid getting sued in the first place.
As lawyers, we here at Zlatkin Wong will always tell you “it depends on the case,” because it does. But that makes for frustrating and unhelpful articles, so let’s consider some of the key principles for using images from the internet.
If you’re a photographer, filmmaker, TV producer, author, blogger, musician, etc., where you have some public-facing work that may sometimes use others’ work, then this is for you.
Never Assume Permission When Using Online Images
The safest principle is to assume you do not have permission to use any given image or video you may find on the internet. In most cases, the photographer holds the copyright to their specific photograph, however mundane or general its subject may be, and this photographer has not provided a broad right for anyone to use his work without permission.
Even if you find something on a CNN.com or Twitter that other people are sharing around, do not assume you can simply copy and paste it into your content without concern for copyright. Restrictions may even apply if you’re embedding content, rather than copying it. There are certain situations where fair use applies, but in those cases it is still advisable to cite your sources when you can. (Definitely make every effort to get the source right, too!)
Think of it this way: It’s your job to establish you have the right to use an online image. It’s not the responsibility of whoever posted that image to say, “Yes, you can use this,” or “No, you cannot use this.” You’ll be held liable for any illegal use, so you should plan to do your homework.
Minimally, when you find an image on the internet that you want to use, you’ll want to know (a) where it came from or who produced it and (b) under what conditions and in what ways you can use it.
Stick to Sites with Clear Licenses
We always recommend you stick to image sites that spell out their licenses. There are many of these, such as Unsplash and Pexels, that clearly define how you can use their images. Sites like Shutterstock and iStock require a subscription and, because the creators get paid, can offer broader licenses or more options
If you’re using the image in something that will be sold or used to sell something—including, for example, on your blog for your business—it’s good to look for the language of “commercial purposes.” That tells you the license allows you to make money (or derive other value) without having to establish any additional agreement with the photographer. All in all, licenses can run the gamut in the various conditions they may require. If you can’t tell what the terms are, then err on the side of not using the images.
What About Creative Commons Licenses?
Creative Commons licenses are popular among creators who believe in the Creative Commons mission of sharing knowledge and creativity to address the world’s problems. These types of licenses are especially popular among academics and NFPs, though several licenses permit commercial use.
There are six kinds of license, so make sure you know what is allowed and required for the one you’re using. Also, you might want to keep in mind the spirit in which the license was granted. You could choose to credit the photographer even if it was not required, or you might avoid using the image in a manner that runs against the grain of the Creative Commons mission. Some Creative Commons licenses allow for use of photographs without payment, as long as you provide proper attribution. If you fail to do so, then your actions will be deemed just as much of a violation.
A Note About Google Search
Please do not make the mistake of assuming that video or images that show up in a Google search are public domain or fair use or Creative Commons or anything like that.
You can use search filters in Google to drill down to images that have specific licenses, but don’t assume Google got it right. You must do your own legwork to ensure that you understand the specific license of any particular image.
If you haven’t picked up on it yet, the big takeaway is to read the license carefully. It won’t impress a wronged photographer or a judge to say, “I didn’t realize I couldn’t do that.” Better to put in a little time and effort to assure yourself you’re doing it right. If you’re still feeling stuck, let us know.