Borrowing Images from the Web: An FAQ

To a struggling nonprofit in need of images for its Web site or printed materials, the Internet can often seem like one giant, free photo bank. With high-quality images available at the click of a mouse, it can be tempting to forgo the process of getting reprint permissions or paying exorbitant stock-photography fees — especially when you can rationalize that those downloaded images will help support a good cause.

Yet unless you get permission, use openly licensed images, or work with an image already in the public domain, you may be violating copyright law when you take pictures that aren't your own. Not only are you potentially hurting the artist's livelihood by not paying royalties, you are exposing your organization to the risk of a costly, time-consuming lawsuit.

Below, we'll show you some guidelines for determining when an image is safe to take — and when you should ask permission or look for another source.

Please note: these guidelines reflect U.S. law; for guidelines on using images in other countries, or for specific copyright questions, please consult a legal professional.

What does it really mean when an image is copyrighted?

Copyright is the legal protection extended to the authors or owners of original published and unpublished artistic and intellectual works. In the United States, a copyright grants the author exclusive rights to make copies of the original work, make "derivative works" that vary from the original, and to publicly perform, display, or transmit the work.

This means that it's illegal for anyone else to use the work in these ways without the author's permission. If you carry out any of these activities without permission, you are violating copyright law, and may be subjected to legal sanctions, including fines.

Note that authors may sell or give away their copyright to another person or organization. For instance, a freelance photographer may agree to transfer the copyright on her photographs to the newspaper that hired her as condition of payment. So when seeking permission to reprint or otherwise reuse an image, be sure to seek out the current copyright holder.

Do the same copyright rules apply to Web-based images as printed images?

Yes, says Los Angeles-based attorney Larry Zerner. "Just because the image is only on the Web doesn't make it okay to take it," he noted. "However, there have been cases where judges have ruled that thumbnail-sized photos (such as those used in Google Image Search results) are not infringing in some cases, because applying the fair-use factors, the small photo does not have an effect on the potential market or value of the copyrighted work."

Are there any kinds of images that are always OK to reprint?

In general, there are three instances in which you can borrow images for your Web site or printed materials without asking permission.

1. When the image is in the public domain.
   An image in the public domain has no legal owner. A work enters the public domain through a variety of ways: Either its copyright has expired, its copyright was never renewed, or the work has been dedicated to the public domain. Works whose copyright has expired are those that were published in the United States before 1923, as are those published before 1964 whose copyright was not renewed.
   
   If you are unsure about when a work was created or published, search the records of the U.S. Copyright Office.
   
   If you see a notice that "this work is dedicated to the public domain," that is also an indication that it is OK to republish without permission; however, Stanford University Libraries Copyright and Fair Use Overview recommends verifying that the person who has made this declaration had the authority to do so.
2. When it has been designated "copyright-free."
   There are many online photo banks that advertise themselves as offering "copyright-free" images. While these are generally safe to take, always read the terms and conditions before you use anything. "Do not assume that clip art, shareware, freeware or materials labeled 'royalty-free' or 'copyright-free' can be distributed or copied without authorization," states Stanford University Libraries' Copyright and Fair Use Overview. In other words, just because an image is free doesn't mean you can use it freely.
3. When the image is openly licensed.
   An openly licensed image means that the copyright holder has decided to automatically grant certain reprint permissions. The most common form of openly licensing an image is to apply a Creative Commons license. There are a variety of different Creative Commons licenses — from fairly restrictive to very permissive — so if you come across an image that is licensed this way, make sure you understand the terms before you use it. You can find a list of the six main types of Creative Commons licenses on Creative Commons' Web site.

Don't I get to reprint an image without permission under the "fair use" doctrine?

While "fair use" is a somewhat nebulous term — and subject to interpretation — it refers to the things you can do with an image without permission. In general, it may be considered fair use if you are reproducing a work for the purposes of criticism, comment, news reporting, teaching, scholarship, or research.

Note, however, that if you reprint a work and if the copyright is called into question, the burden will fall on you to prove that you "believed and had reasonable grounds for believing that [your] use of the copyrighted work was a fair use," according to the U.S. Copyright Office.

The U.S. Copyright Office notes that the factors that help determine whether use of a work constitutes fair use include:

• The purpose of the work, including whether such use is of a commercial nature or is for nonprofit educational purposes.
• The nature of the copyrighted work.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• The effect of the use upon the potential market for or value of the copyrighted work.

Keep in mind that penalties for knowingly violating U.S. copyright laws can be severe; if you have any question as to whether something constitutes fair use, err on the side of caution and double-check with the copyright owner or consult an attorney.

Doesn't copyright law contain exceptions for nonprofits?

"The reader has to be clear about the difference between a nonprofit corporation and a nonprofit use," said Zerner. "Just because a corporation is set up as a nonprofit doesn't always mean that it is not a commercial venture. When the copyright act uses the word 'non-profit,' it is referring to a non-commercial use." The best example of this, he said, "would be a teacher in a public school who makes copies of a Langston Hughes poem to discuss with her class. At the opposite spectrum, you could have a nonprofit corporation that performs operas. The company could not put on a performance of 'Nixon in China' without the composer's permission, even if it didn't charge entry into the performance."

What if I don't see a copyright notice on or near the image?

Don't assume that just because an image doesn't have a copyright symbol (©) it isn't copyrighted. According to the U.S. Copyright Office, the use of copyright notice is no longer required under U.S. law as of March 1, 1989. This applies to both works originating in the United States as well as certain foreign works published without notice.

Moreover, just because a copyright notice doesn't appear next to a particular image doesn't mean that the notice isn't located elsewhere on the site. In the article Digital Images and Copyright, the 2Learn.ca Education Society notes that a site's copyright policy may be included under a variety of headings, including (among others):

• All Rights Reserved
• Read Me
• Who We Are
• Copyright and Privacy
• Contact Us
• Site Info
• About Us
• Terms of Use

When in doubt, always double-check with the owner of the Web site about the copyright status of the image you'd like to use. If the image doesn't belong to the site, someone at the organization may be able to put you in touch with the copyright owner.

How do I go about getting permission?

Always get this agreement signed and in writing. "Relying on an oral or implied agreement is almost always a mistake," noted Stanford University Libraries' The Basics of Getting Permission. "You and the rights owner may have misunderstood each other or remembered the terms of your agreement differently. This can lead to disputes. If you have to go to court to enforce your unwritten agreement, you'll have difficulty proving exactly what the terms are."

Your permissions agreement should note whether:

• The permissions are exclusive or nonexclusive — the latter meaning that someone else can publish the same image again.
• How long you are permitted to display the photograph or image.
• Whether you can reprint the photograph in multiple places — as opposed to only on your Web site or only in one newsletter.
• The geographic region where you are allowed to publish the photograph.
• Fees and a payment schedule, if necessary.

For sample permissions forms, you may want to consider purchasing Nolo Press' Getting Permission: How to License and Clear Copyrighted Materials Online and Off, which includes agreements for acquiring authorization to use photographs and other artwork.

Do I need to get permission from the subjects of the photograph, too?

You don't need to get permission from the people in the photograph if they were photographed in a public place and the image is used for a non-commercial purpose, according to attorney Zerner. But if the subject was photographed at home or in another private setting and you are using the image commercially, then you are required to seek permission from that person, even if you already have a go-ahead from the photo's copyright holder.

Fortunately, many photographers already get permission from their subjects when taking photos that they know will be published. So you may not need to track down the subjects themselves, but rather you can simply ask the photo's copyright holder to verify that the permission was given.

What if I can't find the copyright holder of the image?

It's not uncommon to find an image on a Web site that has obviously been copied from another site. This is especially true with blogs, which often reprint information freely from other sources. (This is sometimes protected under "fair use" and sometimes not.) In this case, it can be tempting to assume that the image is free for anyone to use or even rationalize that the harm has already done.

Not so fast! Before you take the image to post on your own site, contact the site where you found the image and see if someone can help you discover the original source. If they don't know and you can't locate the owner of an image, it is advisable to search for a new photograph.

What if I'm sure that I won't get caught?

Chances are you probably won't be hit with a lawsuit if you are caught "borrowing" an image from another Web site and posting it on your own, especially if you are a fairly small organization and your site does not receive much traffic. In all likelihood, you would instead receive a request to take the image down.

If you do receive such a complaint, remove the material immediately, even while you are investigating the claim, advises Stanford University Libraries' Copyright and Fair Use Overview. "Removal of infringing material is also an element of a 1998 law establishing that an Internet Service Provider can avoid liability by following certain rules including speedy removal of infringing material."

Keep in mind that copyright-infringement penalties can be harsh — and if you are caught posting copyrighted material on your Web site and refuse to take it down, the owner of the work has the right to pursue damages. The U.S. Copyright Office notes that infringement can result not only in fines for lost profits, but also for statutory damages of up to $150,000 in cases when it is proved that the infringement was committed willfully. This is in addition to pricey attorneys' fees.

Yet even if you aren't discovered, or penalized, the fact is that you are still stealing someone else's work when you take copyrighted material. Think of it this way: How would you feel if another organization took your mission statement verbatim and passed it off as its own, or copied the exact design of your Web site?

Additionally, keep in mind that just because an image may be new to you doesn't mean that it isn't well-known to others; even the most nondescript image could be a celebrated photograph. If you put a famous picture all over your Web site or marketing materials and later discover that it was taken by a famous photographer, you risk embarrassment, lawsuit, and hefty fines.

What if I give the author credit for the image?

While it is always good practice to credit an author for his or her creation, this isn't a substitute for getting permission from the copyright holder to use it.

Contacting the copyright holder can also be a good way to verify authorship. It's possible that the creator (or "author") of the image you want to use was incorrectly credited. By verifying the creator's name when you get permission, you're also ensuring that he or she is properly acknowledged.

What if I'm using the image for a good cause?

That the image will benefit a good cause might help persuade a photographer or artist to let you use it, or to offer you a discount on it — but it's not an excuse for taking a copyrighted image without permission. Keep in mind, too, that the photographer may not agree with your idea of what is a good cause. You may be all for right-to-die issues; the photographer, on the other hand, may not.

What if I change the image in some way?

If you have converted a copyrighted image to grayscale, sampled only a section of the image, or otherwise altered it without the author's permission, you are still violating copyright law. Why? Because an altered photograph is considered a derivative work, the creation of which is protected as the exclusive right of the author. (Note that different rules apply to some Creative Commons licenses, which allow you to change a work without permission from the author).

Even if you do have permission to use a particular image, don't assume you also have the right to alter it. Before you add that neon glow, charcoal filter, or other Photoshop distortion, get a green light from the copyright holder.