I would like to talk to you about the legal aspects of using somebody’s photograph found on the Internet.
Paweł Chojecki: OK. To begin with, let me explain a few things. First of all, using images found on the Internet, very often on international portals, is connected with the problem of deciding which regulations are valid for that particular image. Which is why I believe it is worth going beyond the Polish regulations and trying to develop some universal hints for using somebody’s photographs.
And so: in order to use the images for commercial purposes you need to obtain a consent from the owner, or a license, or to find out if the image is legally protected. Second thing is what we understand by using an image. I assume we are talking about using it for commercial purposes, by which we understand all forms of using an image related to gainful activity, even if using the image itself does not translate directly into making an income. In the commercial use of images there are also legal exceptions allowing to use somebody’s image without obtaining that person’s legal consent.
Let’s begin with a situation when an image is not legally protected. Is this when we’re talking about so called public domain?
P.Ch.: Yes. The public domain usually includes the images to which legal protection has expired, which is several dozen years after the author’s death. The problem is, with little time and money it is often hard to find out who was the author and when he or she died…
The public domain also includes images which do not meet the copyright law requirements. And here a problem arises. First, whether an image meets the copyright law requirement can be evaluated: in each individual case the court looks at the image and decides if it meets the criteria for authorship. Second, courts have set a very low threshold for a work to be protected by law. Therefore, it is safer to assume each image is protected by authorship rights and that in order to use it commercially you need a consent of the author (licensor).
Let’s talk about the exceptions you have mentioned. When can you use a legally protected image without the author’s consent? Is this similar to a situation when we are reviewing a piece of art and we are free to use the official cover or poster?
P.Ch.: In legal systems similar to that in Poland there is a legal concept, so called right to quote, which is one such example. It enables you to use a fragment or even a whole short piece of literature if such use is justified by the circumstances, e.g. an explanation/critical analysis, or by the law applying to a given genre. So for instance, in a book review we can use the photograph of the book cover as this is, in my opinion, justified by the explanation/critical analysis requirement. To better understand how the right to quote works we can think of a collage as typical genre-related law, which uses foreign pieces to create a new, derivative work.
What’s important, a quote must complement the new, independent work (a review, collage, or book quoting fragments of another book).
Another exception: in the common law system there is the fair use concept, which also allows for using somebody’s work without the author’s consent and without the need to pay for it. The essence of fair use lies in the lack of a closed list of cases when it is possible to use somebody’s work without their consent (different than in the case of the right to quote). Instead, we make so called tests in order to decide whether there is a balance between authorship and the right of the public to have access to legally protected pieces of art.
You can legally use images from outside the public domain, and without the necessity to contact the author, when they’re offered by stock photo websites, which have the author’s consent in the use license.
P.Ch.: There are many websites offering paid image licenses. You choose the right license “buying” a stock photo – you define the range of use, time of use etc. A frequent mistake here is that agencies buy a license for themselves, when a license for the customer is needed (the image will be used in the customer’s project). Meanwhile, licenses usually forbid sub-licensing or transferring the rights of use onto another entity.
We can also take a picture from a free source.
P.Ch.: Such sources do exist (by the way, an interesting Polish example here would be tookapic.com) and they most often use the Creative Commons license. In that case each image has a particular CC license assigned to it and you cannot choose or change the license conditions.
And here’s a question often asked: what if I buy rights to an image as part of a CC license and then the author resigns from selling that image on a CC license? In that case the buyer, who has bought the right to use the image on the CC license, can continue using it as described in that license, even if the author changes the way he or she is selling the image from CC to a commercial license.
The Creative Commons itself can be divided into several groups depending on the level of freedom offered. How would you describe it in simple terms?
P.Ch.: CC licenses operate within four basic limitations, which can occur independently or in various configurations (I recommend the CC website – it has it all described very clearly):
1) “Attribution” – the licensee can use the work almost without limitations but has to give the author or licensor the credits .
2) “Noncommercial” – may use the work only for noncommercial purposes.
3) “Share alike” – if you create a derivative work you can distribute it only under a license identical to the license that governs the original work.
4) “No derivative works” – no derivative works can be created on the basis of the original work.
When using somebody’s work upon an open license, do I need to describe it in details (i.e. provide the author, source, or where we found the original image, and license type)? If so, does this information need to be placed directly under the image?
P.Ch.: In the case of a CC license – yes, that is you must specify the author, title of the work and the license type. There’s no need to specify the source.
The license says about giving credits in a reasonable way, so it must be visible and it must be obvious which image it regards. There are no specific recommendations here, as different types of images may require different solutions.
If I have the author of the photograph’s consent, or use a royalty-free stock photo, but one with somebody’s image in it, is this enough to use this picture?
P.Ch.: The license in its pure form regards authorship. Using someone’s image is another thing – you need a permission to do that. In practice the license should contain a note stating that the author/licensor has obtained a consent for using the photographed person’s image in the photograph and to give license for that.
Where do I look for information (e.g. website administrator) about the possibilities and the range of using a particular image?
P.Ch.: Anywhere you can. If such information is not visible or easily accessible, this probably means the author does not allow for using his or her works (images, photographs). You can always write to the author and ask. If there is no reply – see the answer for the first question.
What are the most frequent sanctions for using an image without license – for violating somebody’s copyright?
P.Ch.: First of all, it can be very costly. Second, you will have to stop using the work (such as an image). If the image was used on billboards, this generates additional costs. And third, sometimes the worst sanction can be publicizing the fact, which can result in losing reputation, customers etc. To sum up: paying damages, call to stop using the image, and terminating the contract by your customer.
When searching images on Google we can choose the right option in the “copyright” column. Does this kind of filter guarantees what “pops out” are only images that we can really use?
What about using logotypes of companies, competitions or events? If I mention I have won in a given competition or that I was mentioned in a magazine, can I use the relevant logo downloaded from the Internet?
P.Ch.: This gets a bit complicated, as we’re talking here not only about authorship but also trademark rights (logo). But if it’s about using a logotype only for informative purposes about a prize you have won – I see no impediment.