Can I Use This Picture? A Guide to Copyright Fair Use

You’ve heard the saying that a picture is worth a thousand words, but when that picture is protected with image copyright, the picture is only worth three words: cease and desist.

OK, that’s kind of a lawyer joke. But it illustrates how protective people are about finding their copyrighted images used online without permission. Copyright laws were established not to give the author the right to deny their work to other people, but instead to encourage its creation.

Need to use an image but not sure if you have the legal and ethical right to do so? Understanding the laws for using images can be a bit tricky, especially because there is wiggle room within the laws. And, with the mass distribution of images on the internet, it’s no wonder we’re all asking the same question over and over again: can I use that picture?

The first and most important rule to learn here is — ask permission to use all images. If in doubt, don’t use the image! If you understand this statement than you can easily follow copyright laws. But, if you like to get into details and investigate the state of copyright infringement, this article will fill the gaps.

What Is Copyright?

We see the little all over the place, but what does it mean and how did it get there? To get a comprehensive and accurate understanding of copyright, we went to the most official source we could think of — the United States Copyright Office.

“Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture”

Source: US Copyright Office.

Now that we have a pretty explicit description of what copyright is, it’s time to address when copyright protects a piece of work.

One of the many terrific things about copyright is that it comes with a host of exclusive rights that allow the owner to do or authorize a number of things and exercise substantial control over his or her work. The copyright owner has the right to do four things (called exclusive rights):

Reproduce the copyrighted work;

Display the copyrighted work publicly;

Prepare derivative works based on the copyrighted work; and

Distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.

Source: 17 USC Section 106.

Illegal Image Use Consequences

Analyzing PicScout’s data gathered from crawling the most (technologically) advanced territories such as the US, UK and other EU countries, reveals a gloomy reality as far as unauthorized use is concerned:

• There are around 150 million commercial sites
• The majority (70%) of the commercial sites use images as their primary means for communicating ideas and services, and each such site uses more than 130 images on average
• a fifth (1/5) of the commercial sites tend to refresh their images every year, by refreshing at least 39 of their images
• Total: Approximately 14.5 Billion images appear on commercial websites.
• Let’s assume that the commercial sites only use a fraction of stock images. For the sake of argument, we will use here 30% (it’s much higher in reality)
• An average of 78% of commercial sites that are found by PicScout and reported back to our customers, are identified as unauthorized uses (or unlawful use).
• If we extrapolate this unauthorized use tendency, the potential number of unlawfully used images is 3.39 Billion
• To emphasize the overwhelming impact of the above number, let’s assume a price of $5 per image (which is FAR from the reality of most RF, RM images). This results in estimated potential revenue of approximately 16.9 Billion USD!

Needless to say, this startling figure represents a staggering loss of revenue for creative professionals. More importantly, we need to keep in mind that this number represents only commercial websites in developed countries. We realize that the scale of the problem is greater still when we take into account all countries as well as of non-commercial images usage.

When can you use someone else’s image?

The rule of thumb is that you must receive authorization from the creator in order to use his/her image (you’d be smart to get this in writing). Does this mean that every single one of the billions of pictures on the internet is either authorized by the creator or in violation of online images copyright? The answer is no — and this is where fair use comes into play.

All about Fair Use

Fair use is an exception and limitation to the rights of exclusivity that are granted by copyright to the creator of a piece of work. In the US, fair use allows for limited use of copyrighted material without authorization from the author of the creative work. The purpose of fair use is to provide limited application if it benefits the public.

Don’t get too excited! Fair use isn’t a green light to utilize any image under the sun — like everything in life, there are rules, and this isn’t one that is meant to be broken or exploited.

As you can guess, fair use isn’t a black or white sort of thing. If you aren’t a lawyer with a very in-depth understanding of copyright law and online images copyrights, there can be a lot of confusion as to what is considered beneficial to the public. To help clarify things, four factors determine whether the use of an image is considered “fair”:

1. The purpose of use: educational, nonprofit, scholarly, reporting, reviewing, or research
2. The nature of use: fact-based or public content (courts are usually more protective of creative works)
3. The amount and substantiality used: using only a small piece of the image, using only a small thumbnail/low-resolution version of the image
4. The market effect: you could not have purchased or licensed the copyrighted work

As you can imagine, using a low-resolution image is probably not the ideal situation if your goal is to create a professional-looking piece of content. On the flip side, if you’re doing a movie or book review, it’s nice to know that inserting a picture of the film or book won’t get you in trouble.

But, current copyright laws say that you’re financially liable for posting copyrighted images, even if:

• You did it by accident
• You immediately take down the picture after receiving a DMCA takedown notice
• The picture is resized
• If the picture is licensed to your web developer (Getty Images requires that you get your own license)
• You link back to the photo source and cite the photographer’s name
• Your site isn’t commercial and you make no money from your blog
• You have a disclaimer on the site
• The pic is embedded instead of saved on your server

You found it on the Internet (that’s not an excuse!)

It Can Happen to You, Too

If you use copyrighted images, you will get caught sooner or later. People who create copyrighted works hire companies that use computer programs to scour the web pages for copies of those images. It takes time to find them, but the process is automated and runs 24 hours a day, 7 days a week. If you post something that’s copyrighted on a blog page that has links pointing to it and the author wants to monitor that particular image, an unauthorized use of it WILL be found eventually. Therefore, you are to remember: Copyright infringement penalties can kill a young business!

Those who break copyright law can incur monetary damages, lawsuits, costly legal fees and even criminal charges, depending on the severity of the theft. As with most of life, an ounce of prevention is worth a pound of cure. Here, introducing a “Digital Asset Management” (DAM) system like the one introduced by Pics.io is a good option for managing content and protecting a brand.

This software will keep all your photos videos, artworks, design mockups, and other marketing collateral in one place. This means you will have a clear overview of all the content and nothing will get lost. You can also use metadata to add rights and license to images, including their expiration dates. This will protect you from lawsuits and will guarantee the security of your own assets.

If you are looking for digital management solution to guarantee the security of your assets, subscribe and get acquainted with Pics.io software working on top of Google Drive.

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