Don’t you just love blogs? I do, although I am a wee bit partial to this one. One thing I do not like is the copyright infringement I witness on a fairly regular basis. Guess what bloggers – you using the photo you Googled and found or that clip from a magazine article, even when you give credit, is very technically copyright infringement. Bloggers be warned – you can get sued for copyright infringement.
There is a great deal of misinformation out there on blogging websites who claim to offer “tips” for new bloggers. You even hear this misinformation, if you attend blogging workshops/seminars. Some blogging tip websites even provide readers a copy and paste version of a disclaimer. You “think” by posting this disclaimer you have all the protection you need. This is one of these urban blogging myths. So, let’s dispel the rumor and talk legal truth.
The truth is that every photograph at the moment of creation is subject to copyright protection. You should assume every photograph is still under copyright protection. This is true, even if the photographer does not include the ©. This includes photos you find via our friend Google. This includes snapshots of glossy fashion magazine pages. This includes content on Pinterest or Tumblr. This includes promotional photos of covers of books, album covers or film posters. Someone owns that material and only that person has the right to license the photos out for use.
See more, The Magic Wands of Copyright
Here are some of the urban myths I have witnessed in the blogging world:
- I did not provide the full-sized image, only the thumbnail. So, fair use says I am okay
- I did not claim the photo was mine. In fact, I provided credit AND a link to the photographer’s website. So, fair use says I am okay
- I have my disclaimer that tells people I will immediately take down their content. So, fair use says I am okay
- I make no money from my blog and do not have advertisements. So, fair use says I am okay
Here is the bad news. None of that matters. None. You are still legally liable to the copyright holder in the photograph. Being legally liable might mean the owner of the copyrighted work will sue you or demand a licensing fee be paid to them for use of the content.
The only way you are not legally liable is if your use falls under one of the three categories:
- You have permission in writing from the copyright holder to use their photo
- The photo in question is posted on a creative commons type website. More about creative commons type websites below.
- The photo is in the public domain. Unlike the name implies, public domain does not mean if the photo has been published to the public. Public domain is the place where materials no longer subject to copyright protection live. It does not mean “it is publicly out there/published, so I have a right to use it.” I get this question a lot when training groups. Publication to the general public does not mean you can use it however you wish.
With the groundwork out of the way, here are my Top 5 Tips for making sure the photos you use on your blog do not infringe someone else’s work and do not subject you to a copyright cease and desist, a hefty licensing fee, or a federal court date.
- Take Your Own Photos.
This seems pretty obvious, but it is really the only sure way you can be confident the photo actually belongs to you.
- Use Stock Photography Websites, Public Domain or Creative Commons Licensed Photos.
There are a great deal of stock photography websites and websites that offer photos under a creative commons license. A word of caution, though, with creative commons type websites is necessary. You should ask some more questions so that you feel very confident the content in question posted is actually owned by the person claiming to own it and has the proper permissions to grant the creative commons license. Said another way, if it is a famous photo of say Sir Paul McCartney, then you might want to ask some more questions before using the photo. Outside of the copyright issues there could be right of publicity issues with using photos containing famous individuals.
Finally be sure to read and follow the guidelines under the creative commons license. Make sure your use is how they say it is okay to use their photo. All of this to say, exercise some caution.
Here are some of my favorite sites for photos:
- Fair Use Does NOT Mean Attribution, and Is Quite Complex.
The first thing you need to know about fair use is that it does not mean free use. Fair use is a defense. Meaning, you are being sued. The second thing you need to know about fair use is that it is very complex. Legal scholars and regularly practicing copyright attorneys constantly split hairs over what is and what is not fair use. Even though it might seem fair to you, the owner of the copyrighted work and other legal scholars might (and probably will) disagree with you. Third, it is very fact specific. Meaning, the outcome of a fair use decision could change on one simple distinction different from a case before it. To sum, if us legal copyright nerds cannot find absolutes to applying fair use, do you really want to use that argument for your blog? Do you really feel qualified to make that type of judgment call? Oh, and saying that you did not know is not a defense either in the realm of copyright law.
For a few more readings on fair use from some of my earlier posts click on the ‘Fair Use’ cloud bubble icon to the right of the screen or check out
- When in Doubt, License it Out
If there is a photo or an image gallery from Pinterest or Tubmlr that you really want to use, then ask for permission to use it from the copyright holder. Even though content might appear on Pinterest or Tumblr it does not mean it is up for grabs to use in other ways. All companies are utilizing social media devices to get the message out about their products. For example, magazines like Women’s Health or Shape have Pinterest accounts where they share content. Just because it is shared on one social media platform does not mean the company wants you to share it or incorporate it outside of the social media platform they chose to display it. Said another way, just because a photographer might choose to share photos on Pinterest does not mean the same photographer is giving the world permission to share the photos on other social media platforms like blogs or Facebook. They still control the rights in how their content is used.
The only sure way to know you have permission to use someone else’s photographs or content is to seek and secure written permission to do so. As I stated above, you should assume everything you find on the internet, including social media sites, is subject to copyright protection. You can possibly share the content within that social media, but you could not repurpose it and use it in another platform like a blog.
- Just Because Other Bloggers Do It Does Not Make It Okay
As the good southern women in my life who raised me would say, “Just because everyone else is jumping into the creek does not mean that you should too.” Maybe they have not gotten caught using copyrighted images. Maybe they actually do have permission and a license from the owner. But, what others are doing has no bearing on what might happen to your blog.
As the owner of the creative work they have the exclusive right to say how their content is used. While all blogs are special (this one included), the owner of the copyrighted work might not want to be associated with your product. And, that is okay and their right to say so.
The bottom line for you to remember is that if the photograph, music or film is not yours, then you need permission to use it. Doing so could subject you to copyright infringement with large licensing fees, a lawsuit for not seeking permission or even a takedown of your blog/website. While the likelihood of getting caught might be small, the risk is very large. Finally, would you want someone else using your content without getting permission? Let’s all do the right thing and honor the creative works of all.
What are some of your favorite sites for free stock photography and creative commons images? Share your resources in the Comments section below and Stay Tuned In!
If you liked this post, please share it and click the FREE Subscription button above to get more! Follow and tweet to me on Twitter where I pass along the latest entertainment law, broadcasting and intellectual property news @RyanneDSaucier.
What a superb and helpful post his was.
I take my own photos.
Keep them coming.
Jim Rosenblatt Dean *Emeritus* and Professor of Law Mississippi College School of Law (MC Law) “Let Justice Roll”
What if you make a power point and use clip art found within the power point software? Does that make sense?
Thank you for reading! By virtue of PowerPoint being a software device with the intention of creating content to share with others, I think this could be okay, especially if it was in an educational realm. However, if you wanted to provide the PowerPoint online in a long-term archival way, I would probably remove all images not licensed to you personally.
Once you pay for the license of a software product, you license any & all use of all material within it. There would be no need to remove the clipart. Nor would this make any sense to remove clipart licensed with the software. A little common sense prevails here people.
Dollar Photo Club now forwards to Adobe, they must have been bought out or something.