As lawyers, we’re sensitive to the gray areas in using images from the web legally, and we want to help you protect yourself. Assuming you have a basic grasp of using online images, there are still a few best practices you should know about.
This is where we get a little into the weeds, which may feel finicky, but sometimes being finicky now can save you a load of trouble down the road.
Address Online Image Use with Third-Party Service Providers
Let’s say you’ve hired a digital marketing agency to produce content, downloadables, social media posts, and so on. Make sure you discuss sourcing images, video, and other content. It may feel like a professional courtesy to simply assume they are acting responsibly, but at the end of the day, you could be held liable for their actions.
You can approach the subject politely by asking, “What’s your protocol for sourcing images and media?” If you aren’t comfortable with an answer, ask follow-up questions until you are satisfied or have enough reason to talk to someone else instead. Get as many of these responses in writing as possible.
Your agreement with any third party should include:
- Representations and warranties that the service provider has secured all the rights to allow you use whatever intellectual property they provide you
- Indemnification obligations for the agency to cover any losses, including reasonable attorneys’ fees, that arise from the agency violating the agreement
If, say, the agency gives you an image they did not secure the rights to, that would constitute a violation of the agreement, and you’d be able to ask the agency to fix their mistake —even if no one is suing you.
If, however, you were to receive an unpleasant demand letter or find yourself getting sued, these clauses could help you in a couple of ways. First, these provisions may help you avoid having to front attorneys’ fees to deal with the issue. Second, you’d be in a better position to claim that the copyright infringement was “innocent.” That could mean lower overall exposure (statutory damages for innocent infringement can be as low as $200 per work) to the point that the rightsholder might not feel the dispute was worth pursuing.
Without the relevant compliance clauses in your contracts, it can be more difficult to claim innocent infringement. In other words, it’s better to have the conversation.
It Never Hurts to Take a Screenshot
Wherever you go to source an image online, it never hurts to take some screenshots of the process. You want evidence of the license terms and that the image was on that site on a particular date. Most image sites, like Pixabay, have a general license governing any downloadable media on their site. Grab that, as well as a shot of the page where you found the file, and make sure both screenshots make it easy enough to tell when that happened.
What does this do? It protects you in case the image site made a mistake on their end, or if the uploaders of the photograph to the site didn’t have the authority to do so in the first place. Image licensing services can only grant rights they have properly secured from the rightsholder (usually the photographer or videographer). Mistakes can be made. If they failed to secure those rights and the rightsholder took action, you could become involved as someone who wrongfully used the image. Allegations of copyright infringement often come years after the infringing use occurred, at which point the images may have been removed from the websites where you had found them. When the time comes, it’s one thing to argue about the applicable legal theories, but you want to be able to prove that you were reasonable in expecting that the content could be used under the website’s license at the time that you started using it.
This may put you into that “innocent infringement” camp. You may still have some liability and you’ll still likely have to take down the infringing content, but the consequences will be minimized compared to what they could have been.
In terms of mechanics for capturing screenshots, you can certainly just use the “Print Screen” option on your computer, but that can be somewhat tedious. We’re fans of using Awesome Screenshot, especially if it ever makes sense to capture not just a still image, but also videos or some other changing dynamics. While the Wayback Machine is a great, well known tool on the whole, beware of relying solely on it for capturing screenshots, as the formatting doesn’t always get stored properly, especially with graphics-heavy websites. When it comes to the quality of the evidence, you want to avoid any unpleasant surprises.
Don’t Mess with Copyright Management Information
Unless the license explicitly states that no attribution is required, do not mess with any information that is encoded or associated with the image such as metadata or watermarks.
The integrity of this data, called copyright management information, or CMI, must be maintained. This is true even if the attribution info is not literally attached to the file but is listed near the image, as is true on many image sites. CMI can include copyright notices, logos, personal and business names, as well as instructions on how to license the works properly.
Knowingly or recklessly stripping this CMI can be a violation of the Digital Millennium Copyright Act (DMCA), which can incur sizable liability (statutory damages range between $2,500 and $25,000 per violation). Each separate copy created may be deemed a separate violation, so this can become a big deal.
Similarly, if you add your own CMI (such as pasting a second image onto the original), you could be found as knowingly having provided false CMI, which in turn will serve as separate violations triggering additional statutory damages. Knowingly distributing images with false, altered, or removed CMI may also serve as separate violations of the DMCA.
You get the idea: Messing with CMI gets…messy.
Beware of Other IP Contained in the Photograph
When trying to determine what is protected in a particular image, a photographer’s copyright usually extends only to the way subjects were posed, the photographer’s choices in lighting, angle, and types of film and camera, evoking a particular expression, and other such variables. The copyright doesn’t cover the actual subject matter of a photograph. No one holds a monopoly on the right to portray a particular person, event, or object. That doesn’t mean, however, that there isn’t other intellectual property that may need to be considered within the photograph.
For example, a photograph may contain particular brands or creative works within the image. As a general rule, it’s okay to show trademarks and brands being used for their intended purposes. You can use someone else’s trademark to identify the particular source of the products, so you don’t necessarily need to blur that logo on a collared shirt in the photograph.
On the other hand, context matters, and you’ll want to avoid suggesting that there is some sort of endorsement or sponsorship of your products or services by the portrayed brand. You’ll also want to avoid negative connotations associated with the brand, as that could lead to claims of commercial defamation. If the person wearing that logo’d shirt is portrayed as drinking alcohol while driving, then you can imagine that the brand might have a problem with that. Similarly, if your article is about some “negative topic,” then maybe the owner of the portrayed brand would claim the appearance of their brand in your article falsely suggests that the brand somehow contributed to the discussed problem.
Photographs might also feature other copyrightable materials, such as artwork on the walls or images on visible computer screens. As a technical matter, there is indeed copying of the preexisting works, and unless some defense applies, there could be infringement of the portrayed copyrightable work. Some of the defenses that may apply could be fair use or de minimis use. In either instance, however, a careful case-by-case analysis would be required. The safer option would be to avoid using images that contain other works as part of the image.
So yes, we’re providing the typical lawyerly “err on the side of caution” bit of advice here. But why is that a bad practical approach? If you don’t really need to take a risk to adequately convey your message, then surely another photograph is easy enough to find that will fit your purposes without creating unnecessary risk.
Tread Carefully When There are People in the Image
There are some subtleties to think about when using images featuring identifiable people. If you can figure out who the subject of the photograph is, then you have to be very careful.
When we’re dealing with human subjects, we aren’t just talking about the original creator’s rights over the image, we’re talking about the appearing subject’s rights over how their identity is used. In other words, the photographer may have had the right to take the photo, but they may not have the right to license the photo for all uses.
The relevant legal doctrines here include the right of publicity, the right of privacy, and false light.
Right of Publicity
If you’ve heard of The Office’s B.J. Novak’s face appearing on random products around the world, you’ve heard of a potential right of publicity case. Novak took the violations with humor and grace, but not everyone will.
Right of publicity protects someone’s likeness, name, voice, image, or other aspect of their identity from being used to market goods or services without the subject’s permission. You might use a person’s face in a book about hiking, but that doesn’t mean you could use the same image on a product page for your outdoor wear. There is no federal right of publicity statute, so rules will vary from state to state. A great starting point for determining the right of publicity rules in any particular state is Rothman’s Roadmap to the Right of Publicity, but the global nature of the internet makes it difficult to plan for compliance in any specific state. Your safest approach is to comply with the most stringent standards.
Right of Privacy
Right of privacy has to do with whether the subject had a reasonable expectation of privacy when they were photographed. If they were in a public space, then there’s no right of privacy. If they were in their home, in a public restroom, or even on a nude beach, you might find yourself in the uncomfortable position of trying to justify why you used that image, even if you weren’t the one to take it.
False Light
The doctrine of false light technically falls under the right of privacy and concerns using an individual’s image in a way that shows disregard for their reputation. This can be hard to prove, but you may want to play it safe.
Think of all the clickbait out there, such as, “You won’t believe what celebs have criminal records,” alongside a photograph of a recognizable person. Does that person in the photograph actually have a criminal record? Besides being gossipy, these posts risk running afoul of the false light doctrine.
In a similar vein, a psychologist might avoid using an image of a person on their blog in such a way that implies that person has a personality disorder.
Waivers
Because of these concerns, free licenses on sites like Unsplash or Pexels don’t necessarily give you carte blanche to use an image of a person however you like. It’s possible for the model to waive these rights, but unless the model has given permission for the photographer or modeling agency to assign the waiver of rights, you can’t count on being able to use a person’s identity for your purposes.
Generally speaking, if the photograph isn’t a modeled shot, then there’s a greater likelihood that the photographer does not have the ability to grant any of these rights belonging to the subject. And by the time you’re accessing the image, it’s rarely possible to know what kind of rights may have been secured by the photographer or agency.
For all these reasons, we tend to stay away from using photographs in which individuals can be identified, if we’re not sure that the individuals would be okay with having their photograph on our site. We tend to only use silhouettes or shoulders-down images of people so as to avoid worrying about clearing any rights belonging to the subjects of the photographs.
Have a question about using online images or video? It never hurts to ask.