Some years ago, we wrote an article clarifying that images found on the internet cannot be assumed to be free to use just because they are freely available[1]. Many things have since changed in our fast-paced digital world, most significantly the emergence of artificial intelligence (AI). Despite this, the law relating to using images sourced on the internet without proper permissions currently remains substantially the same – although some changes may be looming in the near-future.
Doesn’t open access mean internet images are free to use?
Many businesses and individuals mistakenly believe that any image or photograph found on the internet is freely available and can be used or reproduced for the purposes of their business, perhaps on their own website or in other promotional materials.
The short answer is that this assumption is not correct. Most images on the internet are protected by copyright. If you have used a photograph from the internet without obtaining permission, you may find that the owner (or someone acting on their behalf) will demand more than you might expect - both in terms of compensation and a requirement you stop using it.
But I found the image using an image search. Doesn’t that mean it’s free to use?
Almost all images that can be found on the internet, via an image search tool (such as Google Images or Bing Images) or other means, will belong to someone and will be subject to copyright protection.
In the UK and many other countries, copyright arises automatically when a photograph is taken, or an image is created. Nothing else is required. There is no requirement that the © symbol is used with the image, although it is often used to indicate or assert that the owner will enforce their rights.
Generally, unless you obtain permission, or consent, from the copyright owner for the particular use of that image, you will infringe the copyright in that photograph. This means that the owner may claim compensation or an account of any profits you make from the use of the photograph. They are also likely to demand that you stop using the image and destroy any hard or soft copies of it.
Unless the owner of the image has positively given permission which covers your proposed usage, they will be legally entitled to enforce their rights against you.
Who owns the copyright of an internet image?
Identifying the copyright owner
The person who created the image usually owns the copyright unless this was made as part of their employment - the employer business then owns the copyright. Protection applies from the moment the image is created. If you scan or photograph a physical image and upload it, the original copyright still applies.
You can identify the copyright owner by looking for credit lines or captions, checking the embedded metadata, checking stock image libraries or contacting the website owner or publisher.
Orphan works licence via the UK IPO
If you’ve conducted a diligent search and still cannot identify the copyright owner, you may apply for an orphan works licence via the UK Intellectual Property Office, which will allow you legal use of the image under specific conditions.
Is permission always required to use an internet image?
Public domain and copyright expiry
Copyright protection usually expires 70 years after the creator’s death and becomes part of the public domain. Such an image can be freely used. There are other limited situations when copyright protected images may be used without permission such as non-commercial use for research and private study. But if these images are going to be communicated to the public, for example as part of an online school project, permission may need to be obtained.
Creative commons and royalty-free images
Some images are made available on terms which expressly permit certain types of use without payment of a royalty or licence fee. You can find these images in a royalty free images catalogue or library. Alternatively, you can also use Google Images to return only images which are labelled with licence terms (click on the ‘Tools’ button to access the ‘Usage Rights’ drop down).
Creative commons licence terms may permit commercial use of the image without modification but may require that you credit the photographer. Other creative commons licences may be more or less restrictive. Some will permit only non-commercial use. Others may allow some modification of the image. In each case, you will only be entitled to use such an image where you comply with the requirements of the relevant licence terms.
Consequences of using images without permission
Financial penalties and licence fees
Using internet images without permission is infringement of copyright. The copyright owner may ask you to purchase a licence to use the image, or they may order you to stop using it. If you don’t comply, or if you cannot reach a commercial arrangement with the owner, legal action may be taken against you.
The cost of obtaining permission will depend upon the nature of the image in question and upon the exact use to which you have put it. The licence fee for a photograph taken in exclusive circumstances (for example, a photograph of a celebrity in a private location) or where the photographer has had to invest time or money to take the photograph (for example, aerial photographs of a town or landscape) will be greater than a stock photograph of an unremarkable scene.
Similarly, if you have reproduced the image many times on hard copy promotional materials, the licence fee will be much greater than the fee for the single use of a small or low-resolution image on a website. The image owner will also be likely to charge a premium for uncredited use, or where an image has been used without obtaining permission, in advance.
Legal cases illustrating copyright infringement
Legal action can be more costly. A court will start by assessing a reasonable licence fee or royalty payment for the image and for the specific use to which it has been put. As an example, one case[2] involved a loft conversion company (Artisan) which used photographs taken by one of their competitors (Absolute Lofts) showing some of Absolute Lofts’ conversions. Artisan used Absolute Lofts’ photographs on its website and falsely suggested that the conversions had been undertaken by Artisan. Although the usage-based royalty figure for the photographs was £300, Artisan was ordered to pay an additional £6,000 to reflect the greater wrongdoing in this case.
In another case[3], where an exclusive photograph of a musical celebrity was used by a nightclub on their website, promotional posters and flyers, the usage-based royalty fee set by the court was over £5,600.
If you do not agree terms with the image owner and they take you to court, you will also be at risk of paying the image owner’s legal costs which could substantially increase the sums involved.
What about AI? If it can use images without permission, why can’t I?
As the generative AI industry has developed, the application of UK copyright law to the commercial training of AI models and output of resulting images is disputed, with rightsholders arguing this amounts to an infringement of their copyright. Legislation is expected to be introduced by the UK Government following the conclusion of the current consultative process involving both creatives and the technologists. For now, UK copyright law is clear: using internet images without permission is infringement of the owner’s rights.
How to safely use online images
Licences, stock libraries and permissions
The short answer is only to use images where you know for a fact you have permission from the image owner for the intended use of those images.
You could purchase appropriate licences from the image owner or through a stock image library. Alternatively, you could use only images from a royalty-free library, or those which are available on appropriate licence terms.
Contacting the photographer or creator directly
If the image you wish to use is on a blog or an amateur photographer’s website, another option is to contact the photographer directly and ask for permission. They will tell you about the terms on which the image may be used, and they may give permission freely in return for you crediting the photographer.
Take action: protect your business and avoid legal risk
If you are already using images which you have found online without obtaining permission or considering whether or not to use them, it would be advisable to stop using those images and to replace with images which you are entitled to use. Our team can provide expert guidance, review your current practices, and help you put in place the right licensing agreements to avoid costly legal disputes.
[1] Iain Colville, “Don’t assume images found online are free to use”, first published in the September/October 2017 edition of Engineering Designer, the journal of the Institution of Engineering Designers
[2] Absolute Lofts South West London Ltd v Artisan Home Improvements Ltd & Anor [2015] EWHC 2608 (IPEC) http://www.bailii.org/ew/cases/EWHC/IPEC/2015/2608.html
[3] Sheldon v Daybrook House Promotions Ltd [2013] EWPCC 26 http://www.bailii.org/ew/cases/EWPCC/2013/26.html
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
