What are the international copyright and free/fair use protocol for using Internet photos?

Asked about 1 year ago - Huntington, NY

What are the international copyright and free/fair use protocol for using Internet photos? Specifically, those from a search engine (like Google), versus from a photo-sharing site (like Flickr or Photobucket, which presumably have their own Terms and Conditions). Is non-commercial use and reproduction legal, or do you need consent from the owner in all circumstances regardless of use?

Attorney answers (5)

  1. Frank Anthony Natoli

    Pro

    Contributor Level 19

    10

    Lawyers agree

    Answered . Unless explicity outlined in license agreement, you have to assume any image you find online is the property of someone else and it cannot be used without permission.

    See Common Copyrigth Myths:
    http://www.lanternlegal.com/copyright_myths.php

    You should discuss your broader plans and objectives with a lawyer before making any investment just to make certain you are aware of any issues. Most of us here, including myself, offer a free phone consult.

    Best regards,
    Frank
    Natoli-Lapin, LLC
    (see Disclaimer)

    The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the... more
  2. Maurice N Ross

    Pro

    Contributor Level 20

    9

    Lawyers agree

    Answered . There is no "international copyright and free/fair use protocol". Web-sites which provide photographs through file sharing have terms of use which may in some circumstances provide users the right to share or use photographs found on those web-sites. But be careful. Just because you find a photograph on a web-site or search (Google, Flickr, Instagram, Pinterist, etc), this does not mean the photograph was legally posted on on such web-site or that it legally appears in the thumbnail responses to search requests. To legally use, post, or republish a photograph you need to (a) comply with the terms of use of the web-site on which the photograph was found, and (b) identify the true copyright owner and make sure that you have appropriate permissions and licenses from such copyright owner to use the photograph.

    One of the biggest misconceptions is that a photograph can be used for any non-commercial purpose. That is fundamentally wrong. Non-commercial uses infringe no less than commercial uses unless such use is found to be fair use.

    Further, it is rare that the fair use doctrine allows use of a photograph without consent of the owner of the copyright. Fair use is a defense to copyright infringement that allows a copyrighted work (or a portion of it) to be used in certain very limited circumstances. Courts consider many factors in a fair use analysis including the nature, purpose, scope and duration of the use, the portion of the copyrighted work used (i.e., a quote from a book rather than the entire book), and the impact of the use on the market value for the copyrighted work. Fair use most often applies where a copyrighted photograph is used for purposes of education, social commentary, news and journalism, academic analysis or parody. But you should not assume that every educational use is fair use, nor should you assume that every use for purposes of news reporting and journalism is fair use. Fair use will not excuse use of a newsworthy photograph if such use would diminish the economic value of the photograph to the copyright owner. Courts are especially reluctant to find that fair use applies to photographs because the entire photograph is often used, which inevitably diminishes the commercial value of the photograph.

    Further, fair use is only a defense to a charge of infringement. Even if you have a strong fair use argument, you have to prove that argument in court, which can cost hundreds of thousands of dollars.

    The bottom line is this--for every photograph you should presume that you need permission or a license from the copyright owner before you use it, republish it, share it, or otherwise profit from it.

  3. Bruce E. Burdick

    Pro

    Contributor Level 20

    10

    Lawyers agree

    Answered . The international "protocol" is actually a treaty called the Berne Convention to which the United States adhered March 1, 1989. Rather than new protocols, the treaty greatly simplified copyright protection by eliminating formalities such as copyright registration and notice that had been previously required under United States law. Copyright registration and notice are still very advantageous under US copyright law to enable enforcement and collection of enhanced damages.

    This means that you can assume that if it is on the Internet it is protected by copyright, unless it is very, very old-typically before 1923.

    Reproduction and use is typically not legal, since it violates the exclusive rights of a copyright owner under 17 USC 106, whether or not commercial. The fair use exceptions are defined in 17 USC 107, which does not use the term "non-commercial" but rather "nonprofit educational purposes." If you read 17 USC 107, you will understand that this is a very subjective standard that may vary from case to case. And so it is very important for you to consult an experienced copyright attorney who has addressed this issue repeatedly in the past and has a good feel for what the cases are currently holding to be "fair use".

    I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is... more
  4. Edwin Drantivy

    Pro

    Contributor Level 18

    7

    Lawyers agree

    Answered . Generally one can find the websites' terms and conditions when one signs up or clicks a link, Terms or Terms and Conditions at the bottom of the home page.

  5. Todd Matthew Heine

    Contributor Level 13

    4

    Lawyers agree

    Answered . I think Edwin hit this one on the head: these sites will have policies on their ToU. A fuller analysis of this general question could fill a book...

    Total Mobility Law is an international law firm that lets companies do global business with the knowledge and... more

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