Internet Images Are Free, Right (or Wrong)?

A common misconception for brands and organizations is that images found online are fair use for marketing and advertising. Whether you are a large corporation, a freelancer, a do-it-all entrepreneur or an in-house marketing department, it is important to understand image rights, royalties, and licensing.

Using a copyrighted image often results in cease-and-desist letters, fines, and fees. News agencies and photographers engage companies that will monitor the web for unauthorized use of their pictures and retain law firms to enforce the rights if necessary.

For example, the Associated Press has engaged PicRights to monitor the web and the Higbee law firm to enforce violations (https://www.ap.org/contact-us/copyright-compliance/). When they find an unauthorized use, a cease-and-desist letter is sent demanding that the picture be taken down and that the user pay a fine.  The demanded fine can be as little as a few hundred dollars or thousands of dollars.  The amount of the demand is likely tied to the picture used, how it is used (i.e., commercial or non-commercial use), and the status of the entity using the picture (i.e., non-profit or for-profit).

Using a picture without authorization is copyright infringement.  If the demand is sufficiently low, it is likely more cost-effective to pay the fines and put the matter to rest than try to fight the infringement.   However, where the demand is large, then it will likely be more cost effective to engage counsel to help reduce the size of the demand.

The good news is that the fees and violations are easily avoidable. Several companies offer royalty-free images that can be used for free, but as with anything, it is important to read the terms and conditions and maintain proper documentation. Many subscription-based services allow brands and companies to license images for marketing purposes; these are commonly referred to as stock photography or stock images. Another way to ensure your company is using properly licensed images and effectively showcasing your brand is to take your own photos. If using a professional photographer, it is important to understand the terms of the contract with the photographer, in particular, who owns the copyrights in the pictures.  If the photographer retains the copyrights in the pictures, it is important to understand the license granted by the photographer to use the pictures.

But what about memes? Oftentimes, brands will use an image posted on a celebrity’s social media account, turn it into a meme, create a viral sensation, and boost sales.  The Taylor Swift Secret Garden meme is an example.  Is it OK to use such images as memes.  The copyright in the photograph or image that is the basis for the meme is owned by the person or organization that took the picture or made the image.  Hence, in the Taylor Swift Secret Garden Meme, Taylor Swift likely owns the copyright in the picture.  Use without permission would be copyright infringement, and could result in liability.  Thus, freedom to use of a meme generated by third parties should be carefully reviewed prior to posting a meme image.

Avoiding inadvertent infringement of another’s copyright can be as simple as ensuring usage rights in images used in marketing materials. If you have questions about licensing, contracts, or other image-related concerns, contact an intellectual property attorney to discuss your situation.