Websites, blogs and social media have made it tempting—and easy—to copy or link to images or video/music clips we come across on the Internet. But doing so without permission exposes you—and your employer—to a minefield of potential legal trouble. The original creator or content owner can sue you for copyright infringement, and it can get expensive and be damaging to brands and reputations—including your own.
What is protected by copyright?
Copyright applies to art, literary works, photographs, film, musical compositions and anything else that is the product of someone’s creative process and is recorded in a tangible medium. Copyright law is heavily tilted in favor of creators, with very limited exceptions. The idea behind this is that creative expression is discouraged when there is no benefit that accrues to the creator because his or her work product is not protected from unlimited reproduction by others.
A common misconception is that it’s sufficient just to credit the author or photographer. But attribution is not enough without express permission to use the work.
Effective January 1, 1978, the federal Copyright Act of 1976 became the governing law for all applicable creative works created in the United States, replacing all existing state laws on the subject. Under the Act, copyright lasts for the life of the author plus 70 years after the author’s death. Works produced anonymously or under corporate authorship, or “work for hire,” may last 120 years after creation or 95 years after publication, whichever is sooner.
A work need not be registered to be protected by copyright.
A creative work is copyrighted as soon as it is fixed by the author in a “tangible form.” Formal registration offers more legal protections (including the right to sue for statutory damages), but it’s not essential. A work also need not be accompanied by an official copyright notice to be protected.
Ideas can’t be copyrighted, only the expression of them
Copyright applies to a tangible recorded work, not intangible ideas. There is little legal recourse for a copyright holder if someone creates their own work based on a similar idea, as long as they are not copying the work. Inventions that can be patented are different because they are tangible things, not just concepts. But any author can write a story about vampires; they don’t need to be Bram Stoker. Authors can take their inspiration from anything: Arthur Laurents’ “West Side Story” is a rendition of Shakespeare’s “Romeo and Juliet.”
Fair use rules
The doctrine of fair use under the Copyright Act permits free use of copyrighted works under limited circumstances such as nonprofit educational uses, scholarly research or some types of journalism. The mere fact that the user makes no money from copying the work does not translate to fair use, which is another common copyright misconception. Conversely, a use can be a fair use even if the platform generates revenue.
Further, it is the user’s burden to prove fair use if accused of copyright infringement.
How courts determine fair use
According to the U.S. Copyright Office, courts consider the following factors in determining fair use, which is a highly case-specific inquiry:
- The purpose and character of the use. Courts are more likely to find nonprofit educational and noncommercial uses fair, as well as certain “transformative” uses that add something new and different to the work. Satire, for instance, has been found not to violate copyright.
- The nature of the copyrighted work, or degree to which the work that’s copied relates to copyright’s purpose of encouraging creative expression. The more imaginative and inventive a work is, as opposed to fact-based, the more likely it is to be protected. Think “Harry Potter” versus Rachel Carlson’s “Silent Spring.”
- Quantity and quality of the portion used in relation to the copyrighted work as a whole. If the use includes a large portion, fair use is less likely to be found. However, some courts have found use of an entire work to be fair under certain circumstances, while in other contexts, using even a small piece was determined not fair when it was a critical component.
- Effect of the use on the potential market for or value of the copyrighted work. Courts review how the unlicensed use potentially harms the existing or future market for the copyright owner’s original work.
Public domain rules
Works that are in the public domain may be freely used without attribution or payment to the creator. There is some confusion about what is meant by “public domain.” Work published on the Internet is not necessarily in the public domain, even though it’s publicly accessible.
- A work will fall into the public domain once copyright expires, which is typically many decades after the author’s death. Shakespeare and Charles Dickens can be safely quoted and performed, as can most works created over a century ago.
- Anything produced by a S. government entity or employee, such as official White House photos of presidents, space images from NASA, court opinions and congressional reports. Some states, such as Florida and New Jersey, have also released all state-produced materials into the public domain. Harvard Library’s State Copyright Resource Center is a helpful tool on individual state copyright rules.
- Some creators may voluntarily release their work into the public domain, but it’s still the user’s job to confirm this.
Copyright in the digital age
Do you think that just displaying an image hosted on Twitter or another social media site is safe from copyright infringement? Think again.
Courts are increasingly called upon to apply decades-old copyright laws to the new frontier of the internet and social media. The Copyright Act applies not only to the media in existence at the time it was passed, but to all forms of media created thereafter.
The “server test”
A controversial recent federal court ruling of some concern to members of the digital media held that embedding images on one website that are linked to another site’s server still exposes the user to copyright infringement, even though the allegedly infringing party is not in possession of the image. Part of the judge’s reasoning was that to the viewer of the web page, these technical processes make no difference.
This decision (Goldman v. Breitbart, U.S. District Court, S.D.N.Y.) was a departure from the “server test,” which some other federal courts have adopted holding that whether a website publisher is directly liable for infringement turns on whether the image is hosted on the publisher’s own server or is embedded or linked from a third-party server.
However, this remains a highly unsettled area of the law and varies from court to court. Even in cases where the user was found not to have violated copyright, some courts have rejected the hard-and-fast rule that a website’s servers must actually store a copy of the work in order to create a violation.
Plaintiffs in such cases warn that wide adoption by courts of the server test would have a devastating economic impact on the industries that license photography and visual artwork, because it would eliminate incentives for websites to pay licensing fees and deprive content creators. On the other hand, those advocating more relaxed rules argue that expanding liability would have a chilling effect on web functionality.
And even the court behind the embedded image decision questioned whether a creator is actually releasing his image into the public domain when he posts it on his personal social media page. This is clearly a still-evolving area of law.
Users would be wise to play it safe and assume any display of another’s image—whether directly or by embedding or “in-line linking”—is infringement unless specific rights are acquired.
Stock photos and Creative Commons
But don’t despair—there are services dedicated to making life easier for users of digital content.
Users may purchase the right to use licensed images contained on stock-photograph sites such as Getty Images, usually with attribution to the creator or owner. This is why operators of commercial sites often subscribe to these services.
Creative Commons is a nonprofit entity established in 2001 for the purpose of expanding the range of creative works available for others to share legally, while also offering creators a platform to expose their work to the public. It provides free copyright licenses known as “Creative Commons licenses,” which allow creators to specify which rights they reserve and which rights they waive for the benefit of recipients. Images contained on the site are accompanied by an explanation of licensing rights, with associated visual symbols, detailing the specifics of each license.
You can use CC-licensed materials as long as you follow the rules contained on their associated page. Attribution to the creator is a condition of CC licenses. The page that contains the work will provide a template of how it should be attributed, which can be copied and pasted.
Any use of someone else’s work that is not approved by the creator exposes the user to a potential copyright infringement claim. If you’re lucky, all you’ll get is a cease-and-desist letter warning you to discontinue the use.
The one way to be 100% certain that an image is safe to use? Take the photo yourself.