Blog Law: Photo Use and Etiquette

Most SEO experts suggest using at least one photo in every blog post. From an aesthetic perspective it’s a good idea, especially when the photo has something to do with the content. Photos and images are especially important for food blogs. And, of course, there is that “A picture is worth a thousand words” adage.

I always thought everyone knew that copying and pasting photos found on the internet was a definite no-no given that nearly every image created in the last 30 years is still protected by copyright, whether here in the US or from another country extending such rights. Boy was I wrong! When I spoke at Blissdom, one of the questions I asked of the audience was how many people have had a photo stolen. Nearly every hand in the room went up. WOW! We’re talking about fifty-some people (probably more). I went on to ask how many people have used Google Images to find photos. Quite a few hands went up.

Today I want to discuss using photos found online. I will not talk about using images from a brand’s website. The focus is on those images and photos found by searching the internet and coming up with page after page of images that may be suitable for your needs.

What is Copyright? Copyright is protection created by the US Constitution that give virtually every author the exclusive right to use or reproduce their work. This is a federal law and therefore uniform across all states. And, as the US Government has signed on to a variety of international copyright agreements protection is essentially world-wide.

US Copyright is a protection that applies to original works of authorship fixed in a tangible medium. “Original” means that an author produced a work by his or her own intellectual effort instead of copying or modifying it from an existing work. “Fixed in a tangible medium” means that the work is able to be perceived, reproduced, or otherwise communicated. Your blog is the necessary ‘tangible medium’. (17 USC 102)

Nearly every photo taken gives the author (the one who takes the photo) a protectable right to prevent others from using or reproducing that image. Of course there are exceptions, but generally, the photographer owns the copyright. This is actually very important to know should you ever hand your camera to someone else to take a photo. That’s a completely different discussion, but don’t get offended if you ask your photographer friend to use her camera and she says no.

How do I get a Copyright? Copyright is automatic upon creation of an original work of authorship. With regard to photography, with few exceptions, every image is accepted to be covered by copyright upon putting the photo onto a hard drive or similar device.

If the photo is only on your hard drive there really is no significant issue regarding unauthorized copying. It’s when you upload your photo to a photo sharing site, your website, your blog, Twitter, Facebook, or other social media platform when the potential for someone to use your image comes into play.

There is often a misconception that you have to ‘do something’ to get a copyright. That is not true. And no, you don’t have to mail yourself a copy (often referred to as the “poor man’s copyright”). The current version of the Copyright Act does not require any filings to obtain a copyright.

However, if you wish to purse an infringement lawsuit  you will first need to obtain a registration with the Copyright Office of the Library of Congress. (I will not discuss this process here, that’s for another day.)

Can I Use Photos or Images from the Internet? NO! Well, maybe. Possibly. As a general rule, just assume that if you find an image on the internet that it is covered by copyright. Do not just ‘right click/save’ and put it on your website or blog or other social media platform or even use it on print materials. If you can find the source of the image you can then determine if they grant a license, such as creative commons, or offer it in the public domain. If they do offer a license, either free or for a fee, comply with the license and follow their rules and you’re good to go. Just know what you must do.

NOTE: finding something on the internet DOES NOT mean it is in the public domain. “Public domain” is a term of art and referes to a legal rule that means a work is no longer covered by copyright.

Can I Give a Link Back and Use the Photo? Uh, NO! Often referred to as the ‘hat tip’ or ‘shout out’, many feel that if they give the photographer credit of some form then they’re good to go. WRONG! Of course you need to give credit if that is what the license requires, but then you actually have permission. Just telling people who took the photo will not protect you if the author did not give you permission to use the image.

There is a big misconception that people want you to share their photos with your friends, family, readers, etc. Not always true. And while the majority of photographers really won’t mind, there are many who do and many who will not hesitate to take down your site for using their images.

If I’ll Get Caught Maybe I Just Won’t Link Back Even worse! Now you’re claiming it as your own and that is sure to anger the photographer. If you don’t want to link or give credit, either take the photo yourself or find images that are in the pubic domain.

But the Photo Did Not have a Copyright Notice On It! Then, if you want to use the photo, that should alert you to do some extra work to find out who owns the image. Copyright laws do not require the author to include a copyright notice. Yes, having one makes it easier to find out to whom you need to go for licensing. However, the lack of a copyright notice does not mean it is in the public domain or yours for the taking.

Where Can I Find Quality Images I Can Legally Use? There are a number of stock photo sources that offer free or low cost options. The following is not a comprehensive list, just the ones I like to use. Read over the rules so you know exactly what type of attribution is required.

Stock.Xchng

Morgue File

Photo8

Flickr Creative Commons Group

User Beware! Many photographers are embedding their copyright information into the source code for the image, so even if you crop out copyright notices, crop the photo to a size you want, right click instead of download, take a screen cap, or other ways of saving understand that the author may still be able to track your posting of their image online. In addition, just like that game Six Degree of Kevin Bacon you never know who knows someone and you’d be surprises how protective people are of their photos.

Conclusion Before taking any photo off the internet, get permission! Whether it be via a free license such as creative commons, paying for the license through a stock photo site, or using images known to be in the public domain get permission to use the image. It doesn’t take a lot of time to find a quality image. It surely takes much less time than what you’d have to spend if you get a cease and desist or DMCA take down notice.

Other posts in the Blog Law series include copyright, content preservation, contracts and more.

Disclosure: I am an attorney, but I am not yours. The information provided herein is not legal advice and should not be construed as such. Your reading this does not create an attorney/client relationship. I am providing the above for informational purposes only.