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When can I use someone else’s photos on my blog or social media page?

Posted by Neil Shouse | Sep 19, 2016 | 0 Comments

Copyright_20infringement

The United States Copyright Act generally prohibits the copying of other people's creative content. Photos are no exception.

It doesn't matter whether the copyright holder has registered the image for copyright protection. The copyright in photos and other artwork exists automatically from the moment of their creation.

What constitutes a copyright violation?

Copyright violations in images can occur in several ways:

  • Using any or all of a photograph or image without the copyright holder's permission;
  • Modifying a photograph or other artwork without the owner's permission;
  • Having a license for the image, but using it in a manner or medium that isn't covered by the license;
  • Recreating the image without permission; or
  • Creating an image that recalls the original work (unless your own work qualifies as fair use -- that is, use for a limited and “transformative” purpose, such as commentary, criticism, or parody.).

Remedies for copyright infringement

In most cases of non-commercial use, you will simply receive a “cease and desist” letter from the copyright holder or a representative. The letter will tell you are violating someone's copyright and demand that you immediately stop using the image. It may also request confirmation that you have done so.

However, the copyright holder has the right to take you to court without prior warning and will often do so if you fail to comply with the cease and desist demand.

Copyright is governed by United States law (rather than state law), so most copyright claims are heard in federal court.

Remedies the courts are authorized to give include:

  • An injunction prohibiting you from using the work;1
  • Damages in an amount:
  • between $200 and $30,000 per infringement, as the court considers just, or
  • In a case of willful infringement up to $150,000 per infringement, plus
  • Your additional profits, if any, from use of the infringing work;2 and
  • The other party's costs and attorney's fees.3

Additionally, if you use the image on commercial goods, such as posters or t-shirts, the court can order the seizure and impoundment of the infringing articles.

Criminal penalties for copyright infringement

In addition to civil penalties, you also face potential criminal consequences for copyright infringement.

Under 18 U.S. Code 2319, you commit a crime when you willfully infringe someone's copyright and the infringement was committed for purposes of commercial advantage or private financial gain.4

As a misdemeanor, criminal punishment for willful copyright infringement can include:

  • One year in federal prison, and/or
  • A fine of up to $25,000 for individuals or $100,000 for organizations.

There is also an increased penalty for repeat offenders, authorizing a sentence of up to 10 years.

Note that parole is not available in the federal system. This means that if you are convicted of copyright infringement – even as a misdemeanor – you will serve your entire sentence in a federal facility.

What about royalty free images?

Royalty free images are not the same as images in the public domain. A public domain image is one that is not subject to copyright. Usually this is because the work is old and has fallen out of copyright protection.

A royalty free image requires a license and a one-time fee. The license may be subject to restrictions (such as no commercial use or obtaining a model release from anyone shown in the photo).

After payment of the initial fee of a royalty free license, you may use the image as many times as you like, as long as the use is one permitted by the license.

Where can I find free images to use on my website?

There are a number of ways to find free images for use on the internet.

  • Use a free photo sharing site such as Pixabay.com;
  • Use one of Getty's open content images;
  • Take your own photos (including photos of artworks already in the public domain);
  • Receive permission from the copyright owner to use his/her photos;
  • Create your own original non-photographic image using a paid or free app; or
  • If your work is for the purpose of commentary or criticism, use it in accordance with "fair use" restrictions.

Note, however, that fair use is an affirmative defense. You can still be charged with a copyright violation by the owner of the work. As defending a copyright violation suit can run into the tens, or even hundreds, of thousands of dollars, we advise consulting with a copyright lawyer before using a copyrighted work in any significant way.

And if you do find yourself facing criminal copyright infringement charges, we invite you to call us for help. We represent clients accused of crimes in California, Nevada and Colorado.

However, with so many great works available for free, non-commercial website users shouldn't need us. Simply follow this one simple rule: when in doubt -- leave it out. (See our related article, How social media can hurt your defense in Nevada.)

Legal references:

  1. 17 U.S. Code 502.
  2. 17 U.S. Code 504.
  3. 17 U.S. Code 505.
  4. 18 U.S. Code 2319 also makes it a crime if the infringement consisted of phonorecords having a total retail value of more than $1,000, or distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public.

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About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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