Iain Colville, partner at Wright Hassall, outlines the pitfalls of using images sourced on the internet without obtaining the proper permissions.
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. 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.
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.
How much is this going to cost me?
The cost will depend upon the nature of the image in question and also upon the exact use to which you have put it. The court will start by assessing a reasonable licence fee or royalty payment for the particular image and for the specific use to which it has been put.
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 in order 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.
As an example, one recent case involved a loft conversion company (Artisan) who used photographs taken by one of their competitors (Absolute Lofts) which showed some of Absolute Loft’s conversions. Artisan used the Absolute Loft photographs on its website and falsely suggested that the conversions had been undertaken by Artisan. Although the usage based royalty figure for the particular photographs was £300, Artisan was ordered to pay an additional £6,000 to reflect the greater wrongdoing in this particular case.
In another case, where an exclusive photograph of a musical celebrity was used by a nightclub on their website and 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.
How do I know that a particular image is subject to copyright?
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.
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 particular licence terms (click on the ‘Tools’ button to access the ‘Usage Rights’ drop down).
Common licence terms may permit commercial use of the image without modification but may require that you credit the photographer. Other common 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.
How can I avoid trouble?
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. 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 the terms on which the image may be used and they may give permission freely in return for you crediting the photographer.
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.
This article was first published in the September / October edition of Engineering Designer.