Would you walk into a gallery, lift a framed photograph from the wall and take it home with you without paying for it? Of course not, that would be theft.
However, the vast majority of photographs, whether they are for sale or just shared for you to enjoy, are owned by someone – and occasionally many people.
Familiar examples might be when you buy a postcard or choose a fine art print for your wall. While you hold a physical copy in your hand, the person who created it still may retain the copyright ownership. This means that they, or the person who looks after their business affairs, has the right to reproduce the image for money. You, as the person holding it in your hands, do not. It sounds really complicated, but actually it’s quite straightforward, even online. And once you know what you can and can’t do when using and sharing photos, everyone is better off.
Mark Paton, European Intellectual Property Counsel for Canon Europe suggests that “in order to know what you can and cannot do in respect to the image, it is critical to establish ownership of a work from the outset and understand who you need to contact to obtain consent to use it.”
If you can’t ask permission, then don’t use it.
Whether you are searching online for that perfect photo for your blog or a punchy front cover photo for that all-important work presentation, it can be easy to overlook that in simply using someone else’s photo or picture, you may, basically, be taking and using something that is not yours. And the owner has every right to claim compensation for its use, particularly if you’ve used it for commercial purposes without consent.For many photographers their reputation and livelihood come from selling their original photographs – whether that’s a one-off picture in a gallery or an original photo that they’ve licensed others to reproduce (like the postcards we mentioned earlier). So, sharing a photo without consent of any owner can directly impact the photographer’s control of how and where their work is used and seen.
There’s no way of knowing if an image you find online has been uploaded by (or with the consent of) the person who holds the copyright. And often it’s impossible to know who owns the image, so just using the photo anyway leaves you wide open to all sorts of legal repercussions. And when it comes to businesses, even the most light-hearted share of a fun photo you found on Google can put you in serious hot water, as this would be deemed ‘commercial use’. Any subsequent damages bill could seriously wipe the smile off your face.
… but there are exceptions
Under European law there are certain limited circumstances when a photo canbe reproduced without consent being required. When reporting the news, for example, or for the purposes of criticism (perhaps you’re reviewing a photography exhibition), or maybe you need to use a photo for your private study or research. You may also have heard of ‘critical parody’, which is where an original work is used to create a new creative piece, simply to satirise or make a social commentary through humour. However, even in these circumstances, it’s important not to have any doubts, so take advice where necessary. It also bears saying that, although these are limited exceptions, it is always appropriate, sensible and simply good manners to try and obtain consent from the copyright owner before using their photo.
Even stock photo sites can be risky
Some websites have thousands of photos available for free and unlimited use – even permitting use of photos for commercial purposes. The potential problem with such sites is that it can be impossible to know who uploaded the photo and whether they even had consent from the copyright holder to do so. When it is as simple as downloading an image found through a search engine and uploading it to the site, there may be inadequate checks and measures in place to ensure that all the necessary consents have been obtained.
It is critical to establish ownership of a work from the outset
“My design agency did it!” is not an excuse
If you’re a business, and your promotional material uses a photo without consent, then the buck stops with you – unless you have a contract with your design agency which expressly says that they accept responsibility for obtaining consents from any copyright owner and will deal with any infringements which may arise. It’s definitely worth making these sorts of checks in advance and ensuring that your design agencies provide these kinds of assurances.
Social Media is a rule unto itself. As long as you stay on one site
According to the terms and conditions of many the most popular social media sites, you can freely share any content you find on it – within that site. For example, it is usually ok under the T&Cs of Instagram to share an image you have found via your account with your followers. But it’s not ok to take that image and use it or share it elsewhere, like at work or on another platform such as Facebook for example. That said, the planned integration between WhatsApp, Facebook and Instagram may change the general T&Cs of these social media platforms in the future, so stay on top of the rules as this happens.
Two guaranteed ways to get it right
Photo libraries, such as Getty Images, are a great way to discover and use professional quality photos with a clear conscience. Of course, there is a fee involved, but that ensures that the creators are being appropriately paid for their work, which is as it should be. Another alternative is to simply create your own content – you don’t need to be an expert, but a few choice tutorials and the right camera can make all the difference. You can even start making your own videos or vlogging!
In the end, it’s just being polite
If you can ask consent to use an image, then do so. The worst someone can say is no – and in the best-case scenario, they might be truly flattered and happy to share. That said, always make sure you give a credit to the image creator and a link to their website or preferred social channel. Who knows, they might get some paid work through it.