C3 Patent and Intellectual Property Law

Jan042011 | Steve O'Donnell

Safely choosing images for your website

Over the past year I’ve had a few clients come to me with nasty letters from image licensing sites demanding $1000+ for copyright infringement. In these cases, a few simple tips could have prevented them from having any trouble.

1) Don’t just grab images you like from other blogs/websites. You don’t know where those images came from: they may be licensed, they may be original works. If you really, really want to use the image, email the site for permission or information on licensing.

2) If it looks professionally done, it probably is. Many people make money from works they post online and don’t like it if you just take them.

3) Be careful. It’s one thing to download examples from a stock photo site to use to create a mock-up page, it’s another to make that page live without being sure that you have a license to use those images.

4) Don’t assume you have “fair use” rights. Fair use is a very fact intensive defense to copyright infringement. You may think you can do something because of fair use, but, you’re probably wrong. Sorry, I didn’t write the law. Even if you do have a bullet-proof fair use defense. . . it’s a defense, it doesn’t prevent you from being sued or from getting a DMCA takedown notice. It’s something you argue in court, after paying your legal team some hefty fees

5) Wide use doesn’t mean it’s public domain. Sometimes wide use means that the image is just really popular, and brings in license fees.

So, how does one find images that they can use without running into problems?

1) License them. Look for images from Getty Images or iStockphoto or any of a number of other image licensing sites, pay their fees, and comply with their licenses.

2) Creative Commons. Search for images and read/comply with the license. These aren’t totally free, they might not cost money, but they might limit what you’re allowed to do or require a link back or attribution. When I’ve used CC images I’ve sent a copy of the page using the image to the creator and thanked them for their image. I’ve always received a nice thank you from the creator.

3) Use free images. Lots of site republish free images. Pull out your google-fu and search for “public domain,” “free graphics,” or whatever search terms suit your fancy.

One annoying point: even if you use a “free image” or a Creatively Commons licensed image. . . or even a purchased image, you can never be totally sure that the image is clear. There is nothing to stop someone from downloading an graphic and reposting it under a Creative Commons license or otherwise granting a dubious license. If you really, really, positively need an image you are stuck with either creating it yourself or commissioning the work (with the appropriate transfer(s) in place). Otherwise you’re depending on others being truthful and granting rights they have the ability to grant. Of course, I’ve never heard of a case where someone has offered a graphic for license that they don’t have the rights to, but that doesn’t mean that it couldn’t happen. The best course of action is to keep a paper trail for all images you use so that if you receive a nasty letter you can point to your records to explain why you’re not a proper defendant.

If you receive a threatening letter concerning an image you’ve used, you should contact an attorney that is familiar with copyright law to discuss your issue.

That picture. . . well, I had some credits with iStockphoto that were about to expire so I searched for “patent” and after looking at a bunch of lightbulbs found a pair of patent leather boots. It seemed almost relevant.