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Visual content is a huge part of the online world; in many cases, it’s considerably more influential than the text that accompanies it. Take the lead photo here, for instance. Isn’t it striking? Doesn’t it make more of an impression than this opening paragraph ever could?

As you start to ponder your preferred brand aesthetic, you should give some thought to an issue that is often overlooked but can easily become quite thorny and even costly: the legality of using particular images. Here’s what every small business needs to learn about image copyright.

What Copyright Means

Copyright is a legal system for protecting content creators from having their work appropriated or copied. It applies automatically, so you never have to apply to copyright something — if you’ve created it in one of the following real-world forms then you’re technically protected by copyright:

  • Literary works.
  • Musical works, including any accompanying words.
  • Dramatic works, including any accompanying music.
  • Pantomimes and choreographic works.
  • Pictorial, graphic, and sculptural works.
  • Motion pictures and other audiovisual works.
  • Sound recordings.
  • Architectural works.

You don’t even have to use a copyright symbol; it was required before 1989, but is now essentially ceremonial. Think of it as a warning to use if you want people to be aware that you will not accept any unauthorized use of your material. (It will also help your case in the event of a lawsuit, as its presence will make it harder for the infringer to claim ignorance.)

What Copyright Doesn’t Cover

Copyright explicitly does not cover the following things (emphasis mine):

  • Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries.
  • Works that are not fixed in a tangible form (such as a choreographic work that has not been notated or recorded or an improvisational speech that has not been written down).
  • Titles, names, short phrases, and slogans.
  • Familiar symbols or designs.
  • Mere variations of typographic ornamentation, lettering, or coloring.
  • Mere listings of ingredients or contents.

The two bolded points are highly relevant to images, because there’s a great deal of imitation in graphic design and photography (as there is in everything else). If you create a technically original image that apes a design you’ve seen, it won’t bring about any copyright issues.

For symbols, logos and types, there is the option to register a trademark which legally associates your branding elements with your company such that no one else may use them commercially.

Seeking Legal Action for Infringement

In rare cases, using copyright images doesn’t cause any problems; the copyright holders don’t know about it, or know but don’t really care. But the more carefully-crafted an image is, and the more popular the content in which it features becomes, the more likely it is that the creator will rightfully feel aggrieved and seek legal action.

While copyright applies automatically, as previously noted, it does need to be formally registered with the U.S. Copyright Office before a lawsuit can be filed. Registering within five years of publication provides prima facie evidence of copyright validity, and registering within three months of initial publication (or at least before the infringement that provoked the lawsuit) makes the copyright holder eligible for statutory damages, attorneys’ fees, and costs.

Using Copyrighted Images

If you feel that you simply must use a copyrighted image, you should ask the copyright owner for permission beforehand. You would stand a better chance of getting away with using it without asking if you were using it for personal use, but using it for business matters is directly tying it to the generation of revenue, something that will probably attract attention.

People will commonly claim ‘fair use’ of a copyrighted image (this often happens with parodies or reviews), but there are substantial limitations around that justification, as it must pass a four-pronged test in which the court will consider:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
  • The nature of the copyrighted work.
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  • The effect of the use upon the potential market for or value of the copyrighted work.

Avoiding Copyright Issues

If you’d rather not even risk being sued (which is entirely understandable, and my personal recommendation), you have two options: use images that are pointedly provided for free use, or create your own imagery.

For the former, you can take your own photos, or create images to use. Creating images might seem daunting if you have no graphics design experience, but it needn’t be all that complicated, especially since there are great online resources for assembles clean visuals without any expertise required.

Snappa is one such resource, and most of its functionality is entirely free to use. You can customize templates to create visual layouts that really suit your style, and the resulting resources will pose no copyright issues whatsoever.

For the latter, you can use stock images, which are images provided for generic use across the internet and beyond. There are a ton of stock image sites out there, so Google at your leisure, but I will note that I find Burst particularly handy for its business stock photos when I want images that looks fresh, and not too generic.

Bear in mind, though, that both online tool resources and stock images will have licensing of some sort, and it will affect things like the extent to which you are allowed to modify them and whether you need to include an attribution link when you use them in media. So you won’t get sued for simply using a given image, but you might get it taken down if you use it incorrectly.

Image copyright can seem quite trivial when you’re running a small operation, but it’s something to be mindful of for a couple of reasons:

  • The bigger your business gets, the greater the risk of using copyrighted images becomes, both legally to your finances and publicly to your reputation.
  • Professional photographers put a lot of time, money, effort and skill into their work, and they deserve better than to have their work used without reward or permission.

Through the generous work of endeavors such as Creative Commons, there are plenty of image resources that can be used freely— so make good use of stock image websites, create your own images when you can, and you’ll be in the clear.

Victoria Greene is an ecommerce marketing expert and freelance writer who likes it when everyone on the internet gets along. You can read more of her work at her blog Victoria Ecommerce.

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