Blogging IP Legal
Is it okay to use another photographer’s photo on your blog?
January 28, 2015
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I have decided to slightly shift the focus of my blog to legal issues faced by digital nomads, bloggers and other Internet-based content creators. I hope that by leveraging my legal knowledge and professional experience, I can provide value to the community.

For my first post on the subject, I am cross-posting with my law firm blog. I think that the information here is very valuable for bloggers, who may face difficulties in understanding how copyright law applies to them.

Additionally, I am working on a video course about the DMCA and how to get infringing content taken down. To get notified as soon as the course is ready and get a special discount code, sign up here to be on the special mailing list. If you’re already on my normal mailing list, you’re good to go, though.

So, IS it okay to use another person's photo on your blog?

I was alerted to this story by a former colleague, freelance cartoonist Bob Ostrom, and thought that it would be good to address the legal issues surrounding the use of photos on your blog. These issues include copyright law in general and different types of licensing. Failure to adhere to the law could land a blogger in big trouble and with a large judgment against them, so it is important to understand the law and act appropriately.

Failure to adhere to the law could land a blogger in big trouble and with a large judgment against them.

Copyright in general:

I’ve written about copyright here before and addressed it in my eBook, but I’ll just say a few words about it in this post. Whenever you “fix” an original work of authorship in a “tangible medium of expression,” you automatically own a copyright over that work. You don’t need to register (though that has numerous benefits), you don’t need to affix a © notification or anything else.

This means that someone else can’t just use that image for their own purposes, whether commercial or not.

That means that you have the exclusive right to make duplicates and distribute that work. When you take a photograph that contains some amount of originality (usually found in the subject matter choice and shooting decisions), you have these rights over that photo.

This means that someone else can’t just use that image for their own purposes, whether commercial or not. Now, it is true that there is a concept known as Fair Use in copyright law. However, this is somewhat complex and just taking another photographer’s photo and using it on your commercial website with no attribution probably does not meet the criteria (in fact, attributing it may be evidence of malicious intent – since you KNOW that it belongs to someone else).

For more info on Fair Use, I have a free eBook on the subject. Just visit this page and sign up for my law firm mailing list to get a copy!

Licensing:

How, then, do companies publish work done by others?

Well, if it’s done by an employee or contractor, they probably own the rights. Otherwise, they most likely have a license to use that photo.

A license is essentially just the permission of the rights holder to make use of that copyrighted work. It doesn’t assign the rights permanently; a license is usually limited in term, scope or both.

There are some so-called open source licenses out there, such as Creative Commons and GPL, made in an effort to simplify the licensing process and be more open. I will cover these in more detail next week, so watch the blog!

Why can’t I just search Google Images and use those? Aren’t they free?

You can’t, and they’re not.

Just because Google is indexing and displaying the photos that you search for DOES NOT mean that there is any kind of license for you to use it on your own blog. Google actually won a court case where it was determined that their use of thumbnails in the search engine was a fair use under copyright law. There is a similar case with Amazon, as well.

Just because Google is indexing and displaying the photos that you search for DOES NOT mean that there is any kind of license for you to use it on your own blog.

In a blogger’s case, such as in the article that inspired this post, making commercial use of a photographer’s entire photo that doesn’t engage in criticism or any other enumerated use goes against many of the fair use factors that courts use. Your use on your blog most likely hurts the market for that image, as well, since it is both directly depriving them of licensing fees and potentially stops others from licensing the image (as they’ve already seen it used on your blog).

What might happen if I do infringe on copyright?

Well, you could be facing some big fines. The statutory penalty for copyright infringement is up to $30,000 for each infringement, or up to $150,000 each if the infringement is “willful.” Remember how I said that attributing the image could be evidence that you KNEW it was copyrighted? That may be willful infringement, and you would be royally screwed if a court finds that is the case.

Companies like Getty Images are in the habit of sending scary letters out to those who have infringed on their images, whether willfully or inadvertently. These letters make a demand for settlement or they will sue, which could cost much more in the end. The letter in the original article was similar; they use the threat of legal trouble as a way to get a settlement, and it works. Actually litigating something is very expensive and time consuming, so most will just pay rather than deal with that cost and hassle.

That may be willful infringement, and you would be royally screwed if a court finds that is the case.

So what do you do to stay out of legal trouble?

There are three ways:

  1. pay the license fee,
  2. take your own photos or acquire the copyright, or
  3. use photos with a Creative Commons or similar license.

Using Shutterstock, Getty Images or iStockPhoto, for example, will allow you to pay for a specific license on that photo. It’s not always cheap, but if you are making money on your blog it may be advantageous to avoid any legal trouble by paying.

When you take your own photos or use an employee under work-for-hire rules, you own the copyright and can use it as you like. Heck, you can even send those scary letters if you find someone else using your copyrighted work.

Creative Commons-licensed photos, what I generally use, often require attribution (see the bottom of this post) or other terms. The licenses themselves are written in a very easy-to-read style, so it may benefit bloggers to take the time to read the license to see what they are able to do with those images. I use a site called Photopin to find images, but other similar sites also exist.

If you have any burning legal questions about running an Internet business, blogging or creating content in any other way, contact me and let me know. I’d love to write it up as a blog post.

Disclaimer: This post is for information purposes only. It does not create an attorney-client relationship between myself and the reader, nor should be it construed as legal advice. If you have a legal issue, please contact an attorney!

photo credit: Hans van Veen/ NITMOI and guidedbycthulhu via photopin cc

About author

Zachary Strebeck

I'm a solo practice lawyer and full-time digital nomad. I run my law practice at www.strebecklaw.com, representing Internet, mobile software and gaming entrepreneurs. I also blog about digital nomad travel at A Lawyer Abroad.

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