Occasionally, the subject of the legality of using images on websites and blogs comes up at the internet marketing forum I frequent and, just yesterday, a contributor at the forum highlighted an interesting post on the subject of Getty Images.
It is not the first time I have heard about this company tracking down people who are using images on their websites illegally i.e. against the terms granted by the creator and owner of the intellectual property (IP). In fact, stories of this company and their aggressive tactics are all over the web. If you found this post because you have received the Getty Images letter, here is a excellent site to help you with planning your response.
Many forum posts I have read are quite ill-informed when it comes to this subject, so I thought it might be beneficial for me to outline my own understanding of the issues. However, the following comes with the usual caveat: I am not a lawyer and this is not legal advice. If you are in legal trouble, you should seek the services of a competent professional.
What Exactly is the Issue?
Here is what Aviva, from Image Bank Israel, had to say on the matter according to Meron over at at Dentingmyuniverse.com:
“There really is no reason for confusion”, says Aviva. “The law is simple and the rules are very straight forward. Either you took a picture – and then it belongs to you, or you didn’t take the picture – and then you must obtain rights in order to use it.”
“If you use a photo that wasn’t taken by you, and you don’t bother with licensing it”, clarifies Aviva – “you are performing copyright infringement”. And that is all there is to it.
You would think this would be quite simple and straight-forward. Perhaps it is in principle, but it certainly is not in practice. Let’s firstly deal with the photographs that you have taken yourself. You would think you would be on safe ground here right? But it turns out that you are not.
If you were to take a picture of a person and then use that picture commercially, you could be in legal trouble if you did not gain the permission of the subject of the photograph. This permission is a legal waiver that is technically known as a ‘model release’ and there are many other kinds of ‘release’ that need to be obtained even to use your own photographs commercially. For example for images of children, you need to obtain a ‘minor release’.
Publishing an identifiable photo of a person without a model release signed by that person can result in civil liability for whoever publishes the photograph – Wikipedia
But it gets worse because it is not just people who’s images you are not allowed to use without permission. If you took a photograph of a dog and used it, you could be in legal trouble if you did not obtain the consent of the dog owner. Similarly, if you took a photograph of a building and used it, you could again end up in legal trouble. These waivers are technically known as a ‘property releases’.
What About Royalty Free Images?
There are many sites on the internet in which photographers upload their own photographs and then grant the licence to other people to reproduce them. In some cases, ths photographers place no resitiction on their work at all; in other cases, attribution of the source may be a condition of use.
Again, on the face of it, this all sounds very straight-forward, but it isn’t. I would wager to suggest that the vast majority of amateur photographers do not understand the foregoing. So when they apparently ‘license’ the use of their images via photo sites, they may well be doing so without having obtained any formal model release, minor release or property release and that means, you could again end up in legal trouble even though you thought the images you used were properly licensed.
In addition, there is nothing stopping a malicious individual (a troll) from downloading copyrighted images and then uploading them to their Flickr accounts and apparently granting rights to other people to use those images when they have absolutely no right to do so; a point made by Aviva in the interview she gave to Meron.
Is This Just a Lot of Fuss About Nothing?
The short answer is ‘no’.
Even the big boys, like Google are not immune to all of this. Recently, I read that they won a case in a German Court, in which they were being sued for using thumbnails, within their image search facility, without obtaining permission. The case may set a precedent for two other similar cases in the German legal system.
In a similar case in the US courts, Google successfully defended themselves under the provisions of ‘fair use’. By the way, the concept of fair use by no means applies to all countries; it is part of US copyright law.
Apple have also faced similar challenges to their use of images by independent photographers:
The photographer alleges that she licensed a photo of the band “She and Him” to Merge Media for limited use in magazines or on posters to promote the band’s appearances … The photographer alleges that Apple used her copyrighted image in a television commercial promoting the iPhone without obtaining permission. – Winston & Strawn
Copyright is an interesting subject and it is complex because, whereas the web is international, laws generally are not and, in addition, not all countries have bought into the Berne Convention.
Even IP that is apparently within the public domain can be problematic because a work can be in the public domain in one country and not another. A good example is the children’s book Peter Pan which is in the public domain in the USA, but not in the UK.
On the internet, you can quite easily be operating within the laws of the country in which you live and yet be breaking the laws of another country simply by virtue of your business being online. A good recent example of this is the new UK Cookie Law which forbids the use of non-essential cookies without obtaining express user consent. That is a UK law and you could quite possibly be breaking it even though the same law does not apply to your own country.
Where Does All of This Leave the Average Blogger?
I’m tempted to say, ‘in a bit of a pickle’.
Firstly, we need to act responsibly. This should go without saying, but unfortunately, it needs to be said. Recently, I downloaded a report about the subject of photo-blogging. It was an interesting report in some respects, but the writer was basically advocating hot-linking to images on the Yahoo News and other news websites. He had a system and he was able to prove that it works too.
That person said he had been hot-linking to news images in this way for years, without any problems. Well that might just be because nobody has yet found him doing it. In my opinion, that person is on very dodgy ground indeed and, even sadder, he is selling this idea to other people as a way of making money online. He said that he always acknowledges the source of the images he uses, as if that gives him any kind of right to use copyright material. The point is that you need to be savvy; you need to use your common sense; you need to be aware that, just like this fellow, many people on the web do not have a good grasp of this stuff!
The current state of affairs means that we all need to be very careful when it comes to using the IP of other people even when the license to do so has apparently been granted. For reasons presented in this article, in my opinion, it is not enough to simply check and double-check the terms of service of any websites from which you obtain images for publication though, of course, you should indeed always do so. We additionally need to bear in mind that the web itself is relatively immature in relation to the whole subject of IP because it is a medium that operates across national boundaries and jurisdictions for which there is no universally accepted law.