WHO KNEW? Search engine results are not a collection of copyright-free works..
How many times have you searched Google images, Facebook, Instagram etc. and found the perfect image, illustration or photograph? Or perhaps a map, table or infographic? Or perhaps you’ve created an image and found someone has copied / posted it without permission or attribution? As tempting as it is to copy and paste these types of photos and images (‘images’) into your own material, advertisement, website, e-book or elsewhere, and perhaps even manipulate it for your purposes, you need to first consider copyright law, and treat it (from a copyright perspective) like any other content you find online. Search engine results are NOT a collection of copyright-free works.
COPYRIGHT IN AUSTRALIA There is no system of registration for copyright protection in Australia as it is free and automatic. Copyright protection does not depend upon publication, a copyright notice, or any other procedure. In Australia, copyright is governed by The Copyright Act, 1968 and copyright duration (which is similar in the U.S.) is the life of the author plus 70 years. The Australian Copyright Council also has many easy to read fact sheets about copyright in Australia that you can search by the type of industry you are in.
SEEKING PERMISSION TO USE IMAGES
To start legally using images, you should assume that all located online images are protected by copyright. An image does not need to have a (C) symbol displayed to be copyright protected. Do your research. Act on facts. If you don’t see permission clearly indicated on an image or photograph, then you need to investigate its copyright status or find an alternative image. If you decide to investigate, take the necessary effort and steps to determine if the image is under copyright protection. It may take time, effort and creativity in your research to determine the name of the copyright owner. Then you need to investigate whether they’re still alive or not. In Australia, copyright is governed by The Copyright Act, 1968 and copyright duration (which is similar in the U.S.) is the life of the author plus 70 years, you need to determine when the duration of copyright will expire or if it has expired already. Therefore don’t just think an “old” photo or image is free either. In September 2018, Google announced initiatives that make it easier for you to find creator and copyright information. They now provide links to image creator, credit and copyright notice metadata, whenever available, for images on Google Images. For more information, see their blog post ‘Image Rights Metadata in Google Images’. If you’re fortunate, the copyright owner’s name will be on the image with a link to click to contact them to ask for permission. And hopefully the copyright owner will promptly reply. Keep in mind: Seeking permission is not the same as being granted permission. But this best-case scenario won’t always be your scenario. You may get no response, or you may get a no, either of which means you cannot use the image.
USE YOUR OWN PHOTOS AND IMAGES OR THE CLIENT’S COLLATERAL When possible, use photos and other images that you’ve taken yourself. Unless you’re employed and took the photos as part of your job, you own the copyright in your own photos. (Don’t forget to obtain a model release from any persons in your photographs and be aware of. This isn’t a copyright issue, but a privacy/publicity issue.) Also keep in mind that if you’ve licensed your images to someone else, you may have limited your own use of those images. Legal123.com have a great ‘Legal Guide for Photographers and Photography Businesses’. If your client is supplying their own images for you to use, make sure you get an indemnity in your contracts from them that grants you permission to use the images and protects you against copyright breaches. Speak to your lawyer on this.
CREATIVE COMMONS-LICENSED IMAGES
There are various Creative Common (CC) licenses that allow you to use an image or photograph (or other online content) without first obtaining permission.
You need to read that license to see what it permits. You may be able to only use the image as-is or perhaps you can modify it. Or, you may be able to use it for non-commercial purposes only. All CC licenses require you to acknowledge the owner of the image.
USE IMAGES FROM STOCK PHOTO AGENCIES
Purchase images from stock photo agencies and follow the license terms. Remember, you’re not outright buying an image from a stock agency, but are paying for certain uses of it. Read the specific terms and conditions (to which you have agreed). For example, you may be able to post the image on your blog but require additional permission to use it on the cover of your e-book. Using images from stock photo agencies will usually offer you a written guarantee of legal protection to a certain value. Make sure you read the terms. Don’t buy one image, use it endlessly, and then share it with everyone else. Licences have restrictions. You are offered protection, but you also have a equal responsibility in the use or distribution of the images.
CONFIRM WHO OWNS THE COPYRIGHT IN THE IMAGE Always verify that the image’s creator has the rights to permit you to use it. They may have assigned their rights to someone else and no longer own copyright in the image. Or, they may have created the photograph or other image at work as part of their employment duties, and copyright belongs to the employer. Ask the image’s creator to provide you with a warranty or guarantee that they are the image creator, still own the rights in the image and have the right to provide you with permission to use it. On free sites, you need to read the licence agreements. For example on Canva they have a clear statement in bold ‘We can’t guarantee that any free images have the appropriate releases for commercial use.’ Often the free sites do not offer you the guarantees, protections and assignments to use images that stock photo agencies do.
SHARING OR LINKING IMAGES This is a changing environment. Copyright-wise, it’s always less risky to link to a photo or other image than it is to copy and paste it onto your website or social media platform. And, it’s best not to embed that link but rather to set out a URL. Legalnews.com published recently a controversial decision in the U.S. District Court Southern District of New York(2) that one could infringe copyright simply by embedding a tweet containing an image from another source in a web page. The logic of the ruling applies to all in-line linking, not just embedding tweets. If in doubt, go to the author and seek permission to share or use the image.
BE INFORMED If copyright has been infringed, the copyright owner is entitled to commence an action in court and various remedies may be awarded including damages or an account of profits that the infringer has made from using the work, legal costs and more. Be informed. Don’t risk it. Respect copyright. Read and understand licence agreements. Use images you have permission to use. Have the correct forms and protections in place where you are using an image the client supplies and if in doubt discuss this with your lawyer.
AD STANDARDS AUSTRALIA
Ad Standards Australia has an extensive resource of codes and initiatives, including resources from The Australian of National Advertisers (AANA) as part of advertising and marketing activities, including industry practices for digital marketing. The aim is to ensure communications are legal, decent, honest and truthful and that advertisements have been prepared with a sense of obligation to the consumer and society with a sense of fairness and responsibility to competitors. If you are preparing advertisements in Australia, care should be taken to know the Codes of Practice around different industries.
REFERENCES AND RESOURCES: https://www.legislation.gov.au/Details/C2017C00180 https://www.copyright.org.au https://www.blog.google/products/search/image-rights-metadata-google-images/ https://creativecommons.org/ http://legalnews.com/detroit/1455269 https://legal123.com.au/how-to-guide/legal-guide-photographers/ https://about.canva.com/license-agreements/free-images/ https://adstandards.com.au/codes-and-cases/codes-and-initiatives-0
Please note, we are not lawyers and are not positioning this as professional advice. This information is based on our own research and online resources and your should seek advice of a lawyer that specialists in trade marks and copyright to review your product, service, position, jurisdiction and unique circumstances.