The Ins and Outs of Using On-Line Photos

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A few months ago, a friend of mine was scrolling through a photography website when he saw something that made him jump out of his chair. There on the screen was a photo of his 6-year-old daughter– sitting on the grass under a stunning summer sky in her beautiful pink dress, having a tea party with her stuffed animals and three kittens. There were several problems with the photo. As I’m sure you’ve figured out by now, my friend had not taken or posted this particular photo of his daughter. In his original photo, the sky was overcast, the dress was yellow, and his daughter– who is actually dangerously allergic to cats– was enjoying a quiet moment alone. More importantly, however, the person who created this composite had never asked for permission to use the original. Needless to say, my friend was more than a little pissed off and immediately set to the task of tracking down the photographer and “politely asking” that the image be taken down immediately. It took a while, but the photographer eventually complied.

Obviously, there are several issues at play here, both legal and ethical. Let’s put aside for the moment that there are some things you just don’t do, and that something like this is WAY up near the top of that list. For those of you who may be wondering how/where this person got access to the original photo, my friend is a high-profile personality in some circles of our industry. Between friends and followers, his Facebook page has about 10,000 people checking out his updates. We can debate the wisdom of posting photos of our children another time. For now, though, let’s take a closer look at the ins and outs of using photos that we find on line.

I’m not sure what the latest statistics are when it comes to the number of new photos being posted daily on the internet. Between Facebook, Twitter, and 500px, not to mention the countless blogs, websites, and tutorials all vying for our attention, the number of images populating the internet is truly staggering. As photographers, graphic artists, and designers, we often find ourselves in situations that require photos and images that we just don’t have in our catalogs. Rather than reinvent the wheel, we turn to the internet– a veritable cornucopia of images that fit perfectly with our vision.

Hopefully, you don’t need me to tell you that a photo isn’t fair game just because it popped up on a Google Images search. What I might be able to offer, however, is a checklist of sorts for determining what is and isn’t okay when it comes to working with on-line photos.

Start With a Question: Who Took the Photo?

It’s well-settled that the person who presses the button and captures the light in the little black box owns the copyright. Obviously, then, there is nothing to prevent you from using your own images any way you see fit. Remember, however, that you may be working under certain contractual restrictions that can prevent you from using an image, even if you took it. Images that you create as part of your employment may be considered Work For Hire. In those situations, the copyright belongs to whomever commissioned the work, which means you are strictly limited in how you can subsequently use the photo. If the work or your employment are covered by any sort of contract or other written agreement, make sure you understand all of its terms before putting the images to any secondary use.

Copyright Violation and Plagiarism– 2 Very Different Things.

Let’s get something straight with our terminology. Both copyright violation and visual plagiarism are wrong, but only copyright violation is illegal. Plagiarism, on the other hand, is unethical. Totally. From a practical standpoint, plagiarism may be rectified quite simply with attribution. Copyright violations, however, can– and should– come with a pretty hefty price tag. What’s the difference? You violate a copyright by using a photo. You plagiarize by recreating one.

While we’re on the subject, let’s clear up one or two things about attribution. You may think that a photo credit, linkback, or “thank you” is enough to keep you off the copyright infringement hook, but it isn’t. Not even close. You know all those no-budget jobs you don’t take because exposure doesn’t pay the bills? This is just the next link in that chain. If I’m not willing to take a gig that won’t pay, I sure as hell don’t want anyone using my images without paying either. I think we all learn very early on that exposure isn’t all it’s cracked up to be. If it’s not enough for you, it shouldn’t be enough for someone else.

Note: I actually have a great example of visual plagiarism. Unfortunately, I haven no attribution information for either photographer and the Fair Use exception to the copyright law is tenuous here at best. If you’re really interested, drop me an email and I’ll show you what I mean.

They Can’t Say Yes if You Don’t Ask.

You’d be amazed how far you can get just by asking the question. My column appears here on DIY Photography twice a week. Over time, that’s a lot of photos, images, and title graphics. I try very hard to use or create only original work, but sometimes it’s not feasible or practical. I do my best in those situations to use either public domain images or those covered by a creative commons license. Every once in a while, though, I come across something that doesn’t fall into either category. I’ve found that contacting the rights holder and simply asking for permission for limited use is often successful. Avoid cease & desist letters, as well as DMCA take-down notices by asking first and respecting the answer.

What Are Public Domain Images?

Simply put, images residing in the public domain were put there by photographers and image creators for use by the public at large, often without the need for any credit or other attribution. Sites like MorgueFile and PublicDomainPictures are filled with literally thousands of images, with no need to tell anyone where you got them.

This would be a good place for me to share part of my philosophy on attribution. Just because I may be using an image that doesn’t require attribution doesn’t mean I don’t give it anyway. If an image has grabbed my attention to the point that I want or need to borrow it, I feel it’s my responsibility to acknowledge its creator, regardless of whether attribution is required or not.

Use Creative Commons Licenses– And Know What They Mean.

Creative Commons licensing was created to provide image and content creators an outlet to share their work in a limited fashion. One way of thinking about it is changing “all rights reserved” to “some rights reserved.” There are six different options when it comes to images protected by a creative commons license, which means that things can get a little confusing if you aren’t careful. Licensing options can range from Attribution (CC BY), all the way to Attribution-Non-Commercial-NoDerivs (CC BY-NC-ND). Attribution is the least restrictive, requiring only that you give credit to the creator. You are free to expand, tweak, change, or build upon the original work– even for commercial use– as long as you tell people where you found it. The Attribution-Non-Commercial-NoDerivs license, on the other hand, is the exact opposite. You must give attribution, and may use the image only in its original form and not for any commercial use.

Flickr, 500 px, and other photo sharing sites have options that allow users to assign Creative Commons licenses to their works, creating vast clearing houses of images available for photographers, artists, and designers to incorporate into their new, original ideas. The photographer who created the composite using the photo of my friend’s daughter should have looked in one of these sites for inspiration, rather than somebody’s Facebook page.

Wrap-Up

What is and isn’t okay when it comes to using on-line photos can be confusing, but it doesn’t have to be. Countless options are available which allow us to borrow and incorporate the work of other creatives, as well as allow us to share our own work while still protecting it. Exercising a little common sense, and showing someone else’s work the same respect you want for your own is really all it takes.

  • http://www.evildaystar.ca Eric Lefebvre

    While interesting the article doesn’t address the risks inherent in using what one THINKS are public domain or CC images.

    Who put those images up in the public domain or under a CC liscence? You can’t be 100% certain that it was the actual copyright owner. Heck, even Microstock sites like IStockPhoto suffer from this where contributors submit images for which they do not own the rights.

    So here you are innocently purchasing an image from IStock or Thinkstock or whoever or downloading an image from Flickr that was flagged under a CC licence and suddenly you get a nasty letter.

    It doesn’t matter that you thought you were using them image lawfully … you can still get sued.

    Heck, I stock even offer a limited liability protection for purchased images.

    —————-
    How Does iStock Guarantee The Legal Safety of Its Files?

    Every file accepted into iStock’s collection has undergone a rigorous inspection process with the strictest quality standards in the industry.

    This process allows us to ensure that every file sold on iStock includes a free Legal Guarantee. This is our promise that content, used within the terms of the license agreement, will not infringe any copyright, moral right, trademark or other intellectual property right or violate any right of privacy or publicity.

    If you receive a threatened or actual claim that your use of iStock content (used within the terms of the license agreement) is infringing any rights mentioned above, notify us of that claim and we will investigate it. If you are responsible for damages as a result of a legitimate claim, we will compensate you up to $10,000. If you need a little extra peace of mind from iStock, the Extended Legal Guarantee increases iStock’s responsibility for your damages and expenses to $250,000 (included free of charge with all Vetta Collection files.)
    ————–

    So in the end? Use your OWN images or purchase them from reputable sites.