Ask a Lawyer: What ARE the Rules for Using Photos You Find Online?

Smart phone taking picture of graffiti mural

If you’ve read any of my previous posts, you know how much I value planning and preparation and being proactive when the stakes are high. So when I met Joan Teich, a business attorney whose tag line is “Plan ahead. It wasn’t raining when Noah built the Ark,” I knew I’d found a friend!

Over coffee a few weeks ago, Joan and I had a great conversation about the legal risks small businesses take on if they opt for a reactive approach to business operations. After discussing half a dozen scenarios for legal trouble from seemingly innocuous practices, we decided to team up and write about things small businesses can do to avoid these common pitfalls.

As someone who started a business in the last 6 months, I wrestled with the rules for using online photos in my blog posts. There are approximately 100 trillion photos on the internet, and some of them provided excellent visuals to illustrate ideas in my writings. But I was intimidated by the legalese language of usage rights, and I spent hours trying to figure out what I could and couldn’t do. I also received mixed advice from people about the risks and potential consequences of just using any old photos that my Google searches yielded. Sadly, this was before I met Joan!

Thankfully, you don’t have to be a legal expert to stay out of trouble with online photos. Below are some tips and best practices from a legal expert on how to use online images!

The key point to understand is that any image (any original work) you find online belongs to its creator. They own all the copyrights in their work -- that is, the right to make copies of it, to sell it, to change it, or to use it in any way. They are entitled to a royalty for use of their work. You can only use their image if you have permission, which you can get in a few ways.

Using someone’s work without one of these kinds of permission is copyright infringement and can make you liable for damages at worst, or at least some cost and inconvenience you don’t need! Sometimes people think giving credit to the creator of the work is enough to avoid infringement, but that is not correct.

So how can I use the image, you may be asking?

There are many reputable stock photo sites that get images whose creator gives permission for their use. They fall into different categories.

a.       Some creators waive all their rights to the image, and make them available through sites where you can get images for free. These are considered public domain – you are free to use them in any way. Be careful to check what the site says on whether images have all necessary consents. For example, a model in a picture needs to consent to have his/her image used – called a model release; similarly, trademarked images need additional permissions as well – called a property release. You can be liable if these are not included.

b.       Most stock photo sites charge you a fee for a license to use a creator’s images without paying additional royalties. Read the license terms carefully because there may be limitations on your use – the number of times the image can be used or what uses are acceptable. The best sites tell you they have model and property releases for an image and also provide you with legal protection against covered claims – they will ‘indemnify and hold you harmless’ – which will give the most peace of mind.

c.       There is a site called Creative Commons, which is a non-profit that created the Creative Commons Licenses.  Creative Commons is a set of licenses where creators give different permissions for use of their work and you can pick the image and license that works for you. Creative Commons licenses vary in their permissiveness, but the most common ones will allow you to use an image with proper attribution.

What happens if you fall in love with an image that isn’t on a stock photo site? In that case, you need to go directly to the creator/owner of the work and ask permission to use it. Don’t assume that the creator will refuse permission – some creators are happy to let you use their work for little or no cost. Others, especially if it is a work by a professional photographer or graphic designer, are only going to allow use with payment; after all, this is their livelihood and they can’t give it away, nor is it fair to take it for your use.

There are also many people posting online who want their work to be shared. In these cases you may see blogs, newsletters or other posts that have an author’s note giving permission to anyone to share their work as long as you do certain things, usually attribute it to them and provide a link to their site. This works well if you simply want to share it in a blog or even email marketing.