“Just pull it off the internet!” Said no good lawyer…ever

January 10, 2017  |  Carole Clark Isakson

Need a graphic of fireworks for a party invite? Looking for a cartoon for a blog? It’s tempting to just use your favorite search engine and copy one of the internet… but please DON’T (at least not until after you read this article!).
Copyright law is alive and well – and applies to items on the internet to the same extent that it applies to the books at the library. We all know that copying someone else’s work is illegal; that work includes art, photos, books, movies, songs and more.  Recent law suits have highlighted the wrongful use of pieces of songs, with courts reiterating that any original work of authorship (so long as it is expressed in a tangible way) is protected.  The internet IS a fixed medium, and works that are found on the internet are still subject to protection. That fireworks graphic? Well, it was created by someone and if you want to use it, you need to have permission.
At this point I suspect some readers are thinking “wait! This is fair use. I won’t make any money on that party invitation so I can use the artwork”. Actually, not true… but don’t feel bad about being wrong, most people (including lawyers) are confused by the concept of “fair use”.   To understand this exception to the rule, start with the rule itself.  An original work in a fixed medium is protected (even without the ©mark), and our fireworks graphic certainly qualifies. Therefore, permission is needed, since using any part of that work is an infringement.  Permission may be granted specifically through a contract or generally by an author, or circumstances may exist that provide an exception to the rule. “Fair use” is an exception to the rule, and in very specific circumstances it  allows the use of someone else’s work without that person’s permission. When considering whether a use is fair use, the court will first consider  the type of use – was it for comment, news reporting, criticism, scholarship or research? Those uses may be allowed without an author’s permission, but other facts are looked at too. How much was copied is a factor, as is the impact on the value of the copyrighted work. The greater the “reward” (monetary or otherwise) to the user, the less likely the court will find that the use was fair and didn’t require the author’s permission.
Keeping all those concepts in mind, how about Facebook sharing? Instagram reposting? Twitter retweeting? One could certainly argue that in using social media an author could be construed to have waived copyright protection, but being in a position of having to argue that in court is an expensive and risky proposition.  In 2014 a court awarded damages to a photographer who, after taking photos of the devastation in Haiti and sharing them with a friend, was shocked to see his photos retweeted and used by such media outlets as AFP, Getty Images, CBS, ABC and CNN.  Because he did not give permission to anyone to use his photos (simply sharing them was NOT permission) he was awarded 1.2 million dollars in damages in one lawsuit. He settled with the other media outlets on undisclosed terms.
This case sounds unusual, doesn’t it? The use of internet images is so rampant one can imagine that there are thousands of infringements per day, and therefore there should be thousands of lawsuits as well, but there aren’t. This lack of enforcement is part of what feeds the misconception that images on the internet are free for one’s taking.  The reality is that many instances of copyright infringement are so quick and on such a small scale that the author of the work may not even know her work has been used.  Think of your party invite – how would the author even know about it? Actually, if she is a careful author, she has engaged the services of an image search firm that is constantly on the lookout for copies of her work on the internet. At a minimum, you may eventually get a demand letter for your unlicensed use. If she is really determined (and flush with cash) she may bring suit (and you will likely LOSE).   However, one of the reasons that we don’t see a lot of litigation over seemingly minor violations (like your party invite) is the high cost of litigation.
Now that you know you really need permission, how do you get it? First, most websites will have contact information and getting permission may be as simple as contacting the author and asking for it.  In addition, many photos and other works are published on the internet and specifically provided for free use – you may or may not need to give attribution (i.e. credit) to the creator of the work. Many companies offer free search tools to help you locate images that you can use without concern;  I recommend the Free Image Search created by the folks at Cohlab. The link for the Cohlab tool is found below. And many thanks to Cohlab for consenting to the link’s inclusion in this blog! Cohlab is a Google Certified digital marketing agency specializing in responsive website design, SEO, SEM, video advertising, social media and reputation management.
Finally, I bet you noticed the catchy fireworks design at the top of this article. I got it off the internet!! Of course, I used Cohlab’s tool to find a free image which the author had designated as follows: “free for commercial use, no attribution required”.  With as easy as it is to find a free image that you can use without violating copyright law, there is no reason to expose yourself or your company to a lawsuit over copyright violation for pulling images off the internet.
Cohlab tools link