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June 5, 2017
Legal  |  7 min read

Playing Fast and Loose with Unlicensed Photos can Cost You Plenty

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Kathryn Hawkins

Searching for the perfect image to illustrate your blog post? It can be tempting to simply use Google as your search engine and swipe the first image that fits the bill, rather than paying for stock images.

Even so, this strategy can cost you—often to the tune of thousands of dollars.

Image copyright is a complicated field, and many small business owners are getting burned hard simply because they don’t know any better. Here are some tips for staying on top of proper image licensing, and what can happen if you don’t.

“Fair use” is vague—when in doubt, play it safe

Many individuals and business owners attempt to use photos without requesting permission under the “fair use” doctrine, which focuses on a four-factor test to determine whether an original work can be used without proper copyright. According to MIT, judges tend to focus on two primary questions:

  • Is the material transformed by the use?
  • Was the amount of work used appropriate for the usage?

Consider, for example, a university professor quoting a stanza of a Shakespearean sonnet in an essay about his work. This would almost certainly pass the fair use test: It’s a small portion of the work, the essay provides additional context and analysis, and it’s for a non-commercial outlet (also an important consideration).

On the other hand, if you’re writing a blog post that’s rounding up images of delicious dishes from top food bloggers, you don’t have the right to use their images without permission, especially if the blog is serving to promote your own company or is monetized through advertising. If you’d like to use a particular image, always be polite and check with the owner first—he or she may well to say yes.

But by failing to ask, and assuming you’re covered by fair use, you could end up with a copyright infringement suit on your hands. (And even if fair use does apply, it’s much easier to get the green light from day one than beg a judge for forgiveness in the courtroom.)

Don’t grab images from Google

If you’re not getting advance permission to use an image, it pays to be very careful, or you may find yourself on the receiving end of a nasty lawyer’s letter.

Pay attention to the image licensing status of any photo that you consider using for your website. It doesn’t matter if your site gets 10 visitors or 10,000; the penalties will be the same if the image holder decides to come after you for copyright abuse.

A company called Webcopyplus found this out the hard way, months after one of its copywriters used a photo from Google that hadn’t been authorized for use on a client’s blog. The client received a letter from the copyright holder’s lawyer, requesting immediate removal of the image and a payment of nearly $4,000 to settle the matter.

While Webcopyplus removed the image immediately, the lawyer still insisted on payment and refused to negotiate on the price. So the company ended up paying $4,000 for an image that retails on stock photo sites for $10.

Don’t let it happen to you

If you’d like to search for images on Google, there’s an easy way to see what’s safe to use: Once you’ve entered your search term, use the “tools” button on the right side to drill down by usage rights. If you’re planning to use the image for your company website, or even a blog related to your company, you’ll need to filter down to photos that say “labeled for reuse.” If you’re planning to crop, add text, or modify the photo in any way, use “labeled for reuse with modification” to make sure that you’re safely covered.

You’ll also need to check with the source whether attribution is required: Many stock photos are free to use, but still require that you include credit and a link to the photographer. If you don’t include this step, you can still be found in violation of copyright law, so make sure you’ve checked all the details.

Be sure to review Creative Commons’ attribution guidelines to make sure you’re properly crediting an image, and keep a spreadsheet that shows where you found the original image for your own tracking purposes.

Be careful with your screenshots

One danger zone that may not even occur to you? Screenshots.

In the early days of my own marketing agency, Eucalypt, my partner Jeff and I included a section of our website that showcased screenshots of client projects that we’d completed—including a website for a nonprofit that featured a photograph of a leopard taken by a well-known nature photographer.

We’d done our due diligence and secured all the proper image licenses for our client, so they were in the clear—but several months after posting a small screenshot of the image on our own site, we received a “demand” letter from a prominent stock photography site, asking us to pay over $2,000 for our own use of the image. Since we hadn’t thought to re-purchase the license for our own, very limited usage, and it didn’t fall under the “fair use” doctrine since it promoted our work, we knew we’d have to settle. (Though we managed to knock the price down to a more manageable $200.)

If you’re publishing a screenshot on your website, it’s not enough to ask the other party for permission—if the site includes any photographs, you’ll need to confirm that they’re free to use before publishing. If in doubt, blur them out.

File for safe harbor status to safeguard against unauthorized user-generated content

If your site includes user comments or other forms of user-generated content, it’s very difficult to stay on top of potential copyright issues—and downright impossible to avoid them if you allow users to publish comments or upload media directly without moderation.

Fortunately, there’s a legal workaround in this case: the Digital Millennium Copyright Act, introduced in 1998. Under this act, websites bear no liability for uncopyrighted user-generated material—so if your fan decides to respond to your newest blog post with a Simpsons graphic, you’re legally in the clear, no matter what Fox has to say about it.

However, that’s only if you’ve first taken the important step of getting listed as a “safe harbor” DMCA agent with the U.S. Copyright Office. This process costs $105 and can be done online—if your website publishes user-generated content, it’s a safeguard well worth pursuing.

Stick with licensed stock

Image copyright is a tricky subject, and you may easily find yourself on the wrong side of the law if you’re not careful. By and large, it’s best to stick with stock photo libraries, where you can purchase a license that gives you legal rights to use an image: Check out these 18 stock photo sites to find the one that suits you best, and don’t be afraid to customize the images to make them your own.

Want to avoid legal drama AND stock library fees? Download Infusionsoft’s free stock photo pack now.


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