You’re building an online presence and social media following for your business. And you know that a marriage of beautiful imagery and on point copy is exactly what you need. So, when you stumble upon a gorgeous photograph on Google, you figure it will make an awesome addition to your website. Or Instagram feed. Or blog post. Or Facebook ad.

But did you take the time to figure out if you had permission to use the image or if the image was subject to copyright?

There are basic copyright issues that EVERY business owner needs to know before they simply use images they find online.

Before we jump into what copyright is, when copyright rights attach, and what it means to you as a business owner, know that everything I chat about here is intended to provide legal information and education. It is not business, financial, or legal advice, and does not create an attorney-client relationship between us. I’m an attorney licensed in the United States, so everything will be from the perspective of United States law. You should consult with an attorney in your area who understands your particular business situation so that you can take the right steps for you and your business.

(And if you need an overview of the legal issues you should be considering in your online business, snag a copy of An Online Entrepreneur’s Guide to Starting a Business)

So, what is “copyright”?

Copyright is legal protection for an original work of authorship fixed in any tangible medium of expression. 17 U.S.C. § 102

This means that copyright laws apply to everything from your blog posts to your e-course materials, your photographs to your website copy, at the moment of creation. Copyright laws do not, however, protect ideas. There has to be some physical act of expressing your idea for copyright protections to attach.

Copyright law in the United States is extremely fact specific. However, a copyright owner has the following 6 exclusive rights to her work under the Copyright Act of 1976:

  1. The right to make reproductions or copies of the copyrighted work;
  2. The right to prepare derivative works based upon the copyrighted work;
  3. The right to sell or transfer the copyrighted work (including commercial licensing of these 6 rights);
  4. The right to publicly perform the copyrighted work;
  5. The right to publicly display the copyrighted work; and
  6. The right to publicly perform the work by audio transmission (in the case of sound recordings). 17 U.S.C. § 106

When do copyright rights attach?

Copyright law in the United States is an opt-out system. This means that once an idea is physically manifested, copyright rights attach. There are no formalities or magic words.

Previously you were required to include a copyright notice (i.e., © 2019, [Your Company Name]) for copyright protection, but now it’s just a recommended practice to put people on notice that you’re claiming your copyright rights. Which is why you see it everywhere.

While copyright rights are automatic, it is still a good idea to register your work with the United States Copyright Office to protect yourself from copycats. Registration is also required if you want to be able to enforce your copyright rights and obtain things like statutory attorney’s fees and statutory damages (and by statutory I mean legally required).

Generally, copyright rights last for the life of the author plus 70 years. Once the copyright rights expire, the work enters the public domain. No, it’s not a place. Works are considered “public domain” if they are not protected by intellectual property laws – they are free for anyone to use without having to ask for permission.

What does this mean for social media or online sharing?

So, remember that gorgeous photo you found on Google? More likely than not, its copyrighted. And ignorance is not a defense! It does not matter if you did not know the work was copyrighted, you may still have to pay damages if the Court finds your unauthorized use infringed on the owner’s copyright rights.

In today’s online world, many copyright owners use third-party companies or an image copyright tracker to track and protect their copyrighted works. If you simply pull images from a search engine, social media, or elsewhere, and use them, you could be violating the Terms of Service for the social media platform you’re using AND infringing on someone else’s copyright rights.

It’s best practice (and can save you a lot of headache) if you:

  • Ask for permission before using a photograph
  • Read the license agreement for any photograph you obtain
  • Read the Terms of Service for each social media platform you use

Ask for Permission Before Using the Photograph

So how do you find out if an image is copyrighted? Well the first step is to remember that asking for permission is WAY easier than asking for forgiveness!

Want to know how to get permission to use copyrighted images? You can frequently tell who the owner of a photograph is from the watermark (and note that the subject of a photo may not be the copyright holder! Whomever took the picture holds the rights).

If the copyright owner ignores your request or says “no” to your use of the photo, DON’T USE IT!!! You don’t want to receive a cease and desist letter or be served with a lawsuit.

Read the License Agreement for Any Photograph You Obtain

Your best bet to avoid copyright infringement claims is to either create your own images for use or purchase them from a reputable site (like Canva, Creative Market, or Adobe Stock). But even if you purchase a photo, you need to read the license. The reputable sites will have a link that includes the word “License” so you can read exactly how you can and can’t use the photo. The great thing about purchasing photos from a reputable site is that they take care of verifying the legality of their images and typically have insurance in case any legal issue does arise.

There are also free collections of stock photos that you can use (like Unsplash or Pexels) that grant you a license for personal and commercial use without having to give credit to the photographer, but a lot of people know about them (so you’ll frequently see the images being used).

Read the Terms of Service for Each Social Media Platform You Use

It’s important to know what you can and can’t do with other people’s content on the social media platforms you use.

For example, both Facebook’s and Instagram’s Terms of Service specifically indicate that you may only post content that does not violate someone else’s intellectual property rights. Even re-posting content without permission could be viewed as an infringement.

Pinterest specifically indicates that each user’s content can only be used “for the purposes of operating, developing, providing, and using Pinterest.”

What about Fair Use?

I see a lot of people in the online space touting “Fair Use.” If you are using a work for criticism, comment, news reporting, teaching, scholarship, or research, that fair use is probably not an infringement.

BUT the Fair Use Doctrine is actually a very fact specific defense to copyright infringement. The Court will use a 4-factor test and look at:

1. The purpose and character of the use (nonprofit educational, noncommercial, and transformative uses are more likely to be found fair use);

2. The nature of the copyrighted work (using a creative work like a book is less likely to be considered fair use than a factual work like a news article);

3. The amount and substantiality of the portion used (the bigger the portion used, the less likely it will be considered fair use); and

4. The effect of the use on the market for or value of the work (if the use is harming the market or value of the work, then it will be less likely to be considered fair). 17 U.S.C. § 107

In plain English? Don’t count on fair use to get you out of a copyright infringement lawsuit!

Take-Aways

If you’ve skimmed to the bottom you sneaky reader, my top 3 take-aways are:

1. Copyright rights protect an original work of authorship (not ideas);

2. Copyright rights are automatic in the United States, but it’s still a good idea to register your work in order to protect yourself from copycats and have the option of statutory damages and statutory attorney’s fees.

3. You can’t just use photos you find online or on social media. Ignorance is not bliss – you can still be found liable for copyright infringement if you allege you “didn’t know.”

      Nicole Cheri Oden startup company legal documents

      Hi, I’m Nicole!

      Welcome to my blog. I’m a wife, mama, attorney, and small business owner.

      I help online entrepreneurs protect their businesses with custom contracts and my easy to use attorney-drafted legal templates so that they can grow them confidently.

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