More and more, businesses are using images in their marketing – whether it is on their printed marketing materials, website or on social media. But before you snag that cool meme you saw and repost it to your business page or use it on your website, carefully consider the copyright ramifications for your business.
The general rule is unless you created it yourself, the image is protected by copyright and requires permission from the creator or an applicable exception in order to use it. The fact the image was published on social media or online does not change that and neither does crediting the original artist or including a disclaimer in your use of the image.
When considering using a particular image for your business, ask yourself these four questions:
- Is my use a fair use of the image?
- Is my use allowed by a Creative Commons license?
- Is my use allowed because the image is in the public domain?
- Do I otherwise have permission to use the image?
While “fair use” is an oft-cited copyright infringement defense, its scope is limited in a business context. If you intend to use the image to promote your business, the answer to the fair use question is most often a big fat NO. Section 107 of the Copyright Act provides the statutory framework for the fair use defense, which includes uses “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.”
In determining whether a particular use is a fair use, courts consider four factors:
- The purpose and character of the use, including whether such use is of a commercial nature or for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
While none of the four factors alone are definitive, using an image to promote your business will not constitute a “fair use” except in very limited circumstances.
Creative Commons Licenses
Creative Commons is a non-profit dedicated to creating a “commons” of sorts in which people can freely and easily share creative works within the bounds of copyright laws but without the hassle involved in negotiating and administering individual licensing agreements. To that end, Creative Commons has developed six types of copyright licenses that copyright owners can apply to their works, the characteristics of which are represented by symbols that are easy for licensors and licensees to identify and understand.
The license types range from least restrictive to most restrictive, with all six types requiring crediting the copyright owner and three types prohibiting commercial use. Images that have been licensed under a Creative Commons license for commercial use are easy to find on a number of websites, including Google, which allows you to search images using a usage rights filter.
Public Domain Images
The safest method for procuring images for use in your business marketing, aside from obtaining specific permission, is to use images already in the public domain. But do not let that term fool you. Just because the image is easily available on the Internet does not mean it is in the “public domain.” Images enter the public domain for a variety of reasons – the copyright expired, the owner dedicated the work to the public domain, or the work was a U.S. government work.
There are numerous websites offering free public domain images, including Google, again, using its usage rights filter. A popular go-to of mine is Pixabay. Yours truly created an image for my firm’s Instagram page using a public domain image I downloaded from Pixabay.
When in doubt, it is always safest to ask for permission to use an image that is not yours. When asking, be sure to get it documented in some form of writing, detailing the terms and conditions of your use.
Once you have cleared the copyright issue, you still need to consider whether publishing the image might be prohibited for other reasons, including due to privacy rights or rights of publicity of any individuals pictured, or property rights in any items appearing in the image, such as trademarked items or items that are themselves protected by copyright.