There are many misconceptions about posting images on web sites and social media. They range from believing everything online is free-for-the-taking to assuming that if you give attribution of ownership to an image, you’re not infringing someone’s copyright. These assumptions are just plain wrong. Just ask anybody who’s received a cease and desist letter and ended up paying thousands of dollars for what they believed was innocent conduct. The following is not a primer on copyright law but just a few principles that you should keep in mind when you’re posting to Facebook, Instagram, other social media, or your web site.
1. DO post your own pictures.
Let’s begin the discussion with a basic principle: If you snapped the picture yourself it’s generally yours and you’re free to do what your want with it. Post away!
2. DO post “public domain” images.
Did you know that there are some great sources of free media files? Repositories, such as Wikimedia Commons, offer public domain or freely licensed images. Some images are still subject to a license, which have attribution or other requirements. Check the license before you post one of these images.
3. DO link to images that you do not own.
4. DO license images that you don’t own.
If you find a commercial image you like and you want to post it on social media, don’s steal it; license it. A license is an agreement between you and copyright owner that gives you the right to display an image that does not belong to you. The catch is that you will in many cases have to pay someone for the license.
5. DO the research before you post.
So you’ve found an image you want to post on social media. You can’t identify the owner. How do you determine the source? Unfortunately, it’s not easy. A Google Images search is a good place to start. Remember, it’s better to be safe than sorry, so if you can’t determine the source, don’t post it, link to it instead.
6. DON’T believe people who tell you that everything on the Internet is free for the taking.
Nothing in the law – copyright or other law – says you abandon your rights in copyright if you post an image on the Internet. Granted, the rights may be more difficult to police but they still belong to the author. And, just for your information, rights in copyright consist of the right to make copies, to make derivative works, and the rights to distribute, perform, and display the work.
7. DON’T believe you won’t suffer any consequences if you disregard the advise in this column.
Now that you understand that nothing is free, before you post that beautiful image of a sunset on your Facebook page, make sure you have the rights. If you don’t, the author or creator of the work has the right to send you a cease and desist letter because you are infringing her copyright. A cease and desist letter essentially says, “stop and take it down or I’ll sue”. Okay, so you don’t think it’s worth while to send you a cease and desist letter, after all its only one image and it’s just little you who is posting it. Don’t bet on it. Copyright law makes it worthwhile to sue by penalizing infringers with statutory damages (i.e., damages that are not tied to actual damages) and attorneys fees (and lawyers can be expensive)!
8. DON’T rely on “attribution” to save you.
Some people think that it’s alright to post images that belong to someone else if you attribute their ownership (of course, this assumes that you know who owns it). Sorry, but copyright law says that although an author has a right to proper attribution, it does not say that simply identifying the author relieves you from the obligation to obtain the right (i.e., a license) to display her work.
9. DON’T use stock images unless you have paid for them under a valid license.
Companies like Getty Images and iStockPhoto are in the business of selling photographs. If you use one of their photos make sure you have license otherwise you risk receiving a threatening “nastygram.” How would they know? Many stock and other commercially sold images have embedded watermarks or “fingerprints” that special software can detect. Some lawyers have created a business out of crawling the web looking for stolen images and sending cease and desist letters. Beware!
10. Fair Use is hard to predict; DO ask a lawyer before assuming that your activities are protected.
For purposes of “criticism, comment, news reporting, teaching…,scholarship, or research” you can use images belonging to others without securing their permission. This is called “fair use.” Be careful though, fair use is subject to many limitations including the amount and substantiality of what you’re copying, the purpose, and whether you are benefitting financially from the work. There is a vast body of law related to determining fair use so its wildly unpredictable, and it’s expensive to guess wrong. Best to see a lawyer who specializes in this area of the law before you post an image and claim it’s fair use.
11. DON’T panic if you receive a cease and desist letter.
No need to panic if you receive a cease and desist letter. Many times, copyright owners will settle infringement claims for modest amounts and many times they will be willing to negotiate. If you have concerns, hire a lawyer.
— Adam G. Garson, Esquire