Every website, landing page, and blog on the Internet use images to draw the user’s attention. But unless you are a professional photographer, chances are you’ll need to use images created and owned by someone else. There are plenty of sources that allow you to download and use free images, but you better read the fine print, or you may find yourself in violation of copyright law.
Here’s a basic fact everyone should know: the fact that an image appears in a Google search doesn’t mean that it can be used freely for any purpose. All images are copyrighted; therefore, you could be sued if you use them without permission.
Terms Used to Describe Images
“Royalty-Free” images are not free. The “free” in a royalty-free offering does not mean there is no cost to use the image. Royalty-free comes with a one-time paid license to use the image. Royalty-free refers to being able to use the image without paying any additional fees known as royalties, based on the number of times you use it, so long as you use the image within the accepted ways.
“Commercial Use” means that the image can be used directly or indirectly in the marketing and promotion of a product that results in monetary gain. Basically, if you’re using a photo to get people to buy something or visit your website that results in a sale of some sort, that is commercial use.
“Non-Commercial Use” means that the image can be used for a wide range of possibilities such as artistic, educational, scholarly, and personal projects that will not be marketed, promoted, or sold for any monetary gain. Some examples of the non-commercial use of images include presentations, research papers, screen savers, holiday centerpieces, etc.
“Labeled for Reuse” means that the image can be used for non-commercial purposes as specified in the license.
“Labeled for Commercial Reuse” lets you use the image commercially.
“Free Stock Images” means that the images can be downloaded and used for free. Many free stock image sites like Pixabay and Unsplash even allow you to use some images without attribution to the creator but acknowledgment is always appreciated.
Creative Commons is a nonprofit organization that pre-clears the usage rights of images by the assignment of licenses to each image. Creative Commons images are assigned a combination of symbols to pre-define how the images can be used. The following are the most common symbols you will see applied to creative commons images.
Denotes that the image is a public domain image. Images that are designated as public domain are designated as such by the creator or created by the government and for this reason, no copyright exists by statute. Creators can give up their copyright and put their images into the worldwide public domain. Images in the public domain can be used for any personal or commercial purpose.
Denotes that credit must be given to the creator. This license allows users to distribute, remix, adapt, and build upon the material in any medium or format, so long as attribution is given to the creator.
Denotes that adaptations must be shared under the same terms. If you remix, adapt or build upon the material, you must license the modified material under identical terms as the original image.
Denotes that only non-commercial use of the image is permitted.
Denotes that no derivatives or adaptations of the image are permitted.
While the general rule is that you can’t use a copyrighted image without the express authorization from the owner, there is one significant affirmative defense legal construct that allows millions of people every day to use free images for online content.
Fair use is one of the most significant ways the Copyright Act allows persons, other than the copyright owner and its licensees, to use a copyrighted image without authorization. Unlike several other limitations in the Copyright Act, the fair use Section 107, does not establish specific criteria. It sets out, instead, guidelines that enable copyright owners, users, and courts to determine whether a particular use may be fair.
Fair use originated as and remains an equitable concept. This makes it one of the most nuanced areas of copyright law, largely because the statutory framework injects a degree of subjectivity into each fair use analysis.
Fair use is a way to relieve the tension between the First Amendment and copyright law. The fair use doctrine seeks to advance societal interests in having widespread access to works of authorship while preserving copyright owners’ legitimate expectations of being able to control and benefit from the use of their work.
The concept, that persons other than an image copyright owner, should have the right to make certain non-infringing uses of that image that do not require the copyright owner’s authorization, has its roots in the constitutional purpose of copyright law.
As expressed in what is known as the Copyright Clause, that purpose is to “promote the Progress of Science and useful Arts…” (U.S. Const. art. I, § 8, cl. 8). Since the 1800s, courts have recognized that this purpose may be furthered if an individual was authorized, for example, to take a copyrighted work and “really and truly use parts of the work for the benefit of fair and reasonable criticism,” among other things.
In its most general sense, the fair use of an image is any copying of a copyrighted work done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Transformative, while not the only determining factor of fair use, may include the elimination of the background, changing colors, and details to create a whole new image. The amount of change necessary to qualify as fair use will be subject to a judge’s interpretation in the event of a copyright infringement lawsuit. Transformative changes can be done without permission from the copyright owner. Fair use is applied under certain infringement conditions and is determined on a case by case basis.
Fair use, therefore, allows certain uses of copyrighted images without obtaining permission from the copyright owner.
The fair use doctrine likely allows the copying of copyrighted images with no transformational effort if used in an educational setting, such as a teacher using images as part of their instruction. In fact, U.S. Copyright Law allows copyrighted materials to be used in the course of face-to-face teaching activities, so teachers and students can use copyrighted images for classroom presentations, assignments and learning aids without permission from the copyright holder.
The fair use doctrine codifies into law the idea that you can, in fact, take someone’s original artwork without permission, and lays out four primary factors to determine when doing so is acceptable. Collectively, the four primary factors used to determine fair use of copyrighted content are:
- The purpose and nature of your use. Has the material you used from the original work been transformed by adding new expression or meaning? Was value added to the original work by creating new information, aesthetics, insights, and understandings? Is the work being exploited for personal gain?
- The nature of the copyrighted work. You have more leeway to copy factual images, such as a picture of a street with traffic than you do from a creative image that was created in a studio.
- The amount and substantiality of the portion taken. The less of an image you take, the more likely your copying will be excused as fair use. However, even if you take a small portion of an image, your copying will not be considered fair use if the portion taken is the “heart” of the artwork.
- The effect of the use upon the potential market. Another important fair use factor is whether your use of an image deprives the copyright owner of income or undermines a new or potential market for the copyrighted image. Depriving a copyright owner of income will invalidate fair use and very likely trigger a lawsuit.
In addition to the four primary factors used to determine fair use, there are several other factors that a judge may consider when determining fair use.
- The use is consistent with industry practices.
- The use itself provides a significant benefit to the public.
- The use disseminates information regarding a matter of considerable public interest.
- The defendant attributes the plaintiff’s work to the plaintiff.
- The defendant’s copying needs to comply with regulatory requirements.
- It is difficult or impossible to identify or locate the copyright owner, for example, because a book is long out of print.
- The defendant knowingly infringed in bad faith.
- The defendant unjustifiably denies using the plaintiff’s work.
How to Identify the Copyright Owner
Since 1989, there are no longer marking requirements for copyrights. While marking is recommended, an image that has no marking may indeed be protected. Notice requirements are complex and differ based on the year of creation. That said, here are four ways to try to identify the copyright owner.
- If you find an image online, look for a caption that includes the name of the image creator.
- Look for a watermark. A watermark in an image is a clear sign that the image is copyrighted and usually contains the name of the owner.
- Some image creators embed crucial information about their images in the metadata of an image.
- Do a Google reverse image search. You can upload the image or paste the image link into http://images.google.com and follow the results to see where else the image exists online.
Commercial Sites to Download and Use Free Images
The following are seven sites where you can find and download free images:
Are you in violation of copyright law by using free images you downloaded from the Internet?
I would like to acknowledge Michael C. Martensen the Founder of Martensen IP, for his gracious assistance as a reviewer to make sure that the legal issues conveyed in this post were an accurate representation of Intelectual Property law.
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