Many non-profit groups and organizations publish regular newsletters or maintain internet blogs and websites to keep in touch with their members and draw support from the public. The huge number of images readily available through internet search engines has made finding just the right image to accompany such articles on even the most obscure subjects a breeze. Unfortunately, this often leads to inadvertent violations of the copyright law, even by those with the best intentions. While determining whether use of certain images is permissible often depends on many factors, understanding a few basic principles of copyright law can help organizations make more informed decisions and avoid infringement.
U.S. Copyright law protects “original works of authorship” in various forms, including literary dramatic, musical, artistic, and other media, by giving the copyright owner a number of exclusive rights. With respect to photographs, drawings, or other images that might be used in an organization’s newsletter, the copyright owner has the exclusive right to copy, reprint, display, or prepare derivative works based on the image. These rights vest once the work is created, and are not dependent on publication of the work, registration with the U.S. Copyright Office, or display of the “©” copyright symbol. Violation of any of the copyright holder’s rights without permission constitutes infringement. While copyright law does not prohibit all use of images created by another, it does mandate using caution in doing so.
One major limitation to the rights provided to copyright owners is the doctrine of fair use as defined by section 107 of the 1976 Copyright Act. 17 USC § 107. Fair use allows for certain limited use of a copyrighted work for specific purposes, including scholarship, research, criticism, comment, news reporting, and teaching. There is no bright line distinction between infringement and fair use, and whether a given use falls within this exception depends on a number of factors and factual considerations applied by the courts. While one of these factors considers whether the use was for nonprofit purposes, nonprofit status alone is not enough to avoid infringement. Carefully evaluating these factors for each situation is essential. Assuming that a given use constitutes fair use without making such an evaluation often results in infringement.
Copyright protection is not interminable, meaning many images are in the public domain and may be used freely because their copyright protection has expired. Determining whether a copyright has expired can be complicated, and depends on several things, including what laws applied when it was created. The chart available here demonstrates the complexity of this seemingly simple inquiry for works created within the last one hundred or so years.
This inquiry is complicated by the fact that more often than not, the information required to determine the legality of an image’s use is not available. This is especially common when the image is pulled from another website or plucked from a page of image search results. In such instances, the original author, source, date of creation, licensing agreements, and other basic pieces of information necessary to determine whether material is protected by copyright law are often unavailable. This makes it nearly impossible to know whether using the image is permissible, or even to determine the proper party to ask for permission.
A common copyright misperception is that attributing a photograph or other copyrighted work to its author or copyright owner is sufficient precaution to avoid infringement. This is not true. Simply listing the photographer or artist’s name next to a copy of her work is not a substitute for obtaining permission from the copyright holder.
Using a copyrighted image without proper authority can carry stiff civil penalties of up to $30,000 per incident, or $150,000 per incident in cases of willful infringement. 17 USC § 504. Without the explicit permission from the known copyright holder, it is safest not to use a potentially copyrighted image. While obtaining the proper permission or licenses, creating new images, or finding suitable works in the public domain may be time consuming and cost intensive at the outset, it is often required to avoid copyright infringement and its potentially costly consequences.