Navigating the Maze of Image Copyright Ownership: Understanding, Finding, and Avoiding Risks
Image copyright can be a complex terrain, rife with misconceptions and information gaps. The stakes of copyright infringement are high, especially for brands and businesses relying on visual content. But whether you're a content creator, business owner, or consumer, understanding image copyright ownership is paramount in today's digital landscape.
Artists, too, must safeguard their intellectual property, which is integral to both livelihood and reputation.
In this blog post, Stock Photosecrets unravels the intricacies of image copyright ownership, offering clarity on verification methods and emphasizing the critical need for legal image usage.
Join us in demystifying this vital aspect of creative and commercial endeavors; by the end, you'll completely understand how copyright works!
What is Image Copyright and Why Does It Matter
Legally speaking, image copyright gives the creator of an image or photograph the legal ownership and exclusive right to use, reproduce, and distribute their work.
An image's copyright owner decides how, when, and by whom it can be used. Other people cannot use or share the image without the creator's permission unless it falls under certain exceptions such as fair use –more on this later.
The copyright laws that state how to establish copyright vary from region to region or from country to country, but the general rule is that for a photo to be copyrighted, it must be an original concept and composition.
Image copyright is instrumental for the photography business, as it ensures that photographers and visual artists are properly credited and compensated for their work. Thanks to this law, copyright owners can distribute copies of their work and earn money from them, allowing others to use their original work in their endeavors, be it for commercial purposes or personal use, and also show their work on public display. Equally important, it protects the creator's intellectual property rights to avoid their images being stolen or unauthorizedly used, which is called copyright infringement.
Such use without permission constitutes a violation of the copyright and can have considerable consequences, from a copyright notice urging to remove the image to a federal lawsuit. Over the years, there have been notable copyright infringement cases where the wronged artist has been awarded large sums in statutory damages in resolutions that exposed the complexities of this legal frame.
For Photographers: How to Establish Image Copyright Ownership
If you work in visual arts, knowing how to copyright your work is essential. Here are the key considerations.
How to obtain copyright ownership of your images – As we said, the requirements for an image to be copyrightable vary depending on where in the world you are, but some factors are common to most regions:
- Originality – The photo must be original, showing at least minimal creativity and intellectual intervention.
- Independent Creative Expression – The artistic works should be independently created by the author without directly copying from another source and must include a minimal artistic expression; purely mechanical or functional reproductions won’t meet this criterion.
- Fixed Form – The image must be expressed in a tangible medium, such as paper, canvas, or a digital file, allowing it to be perceived, reproduced, or communicated.
- Original authorship and ownership – The creator of the image is usually the initial owner of the copyright. However, if the image is created as part of employment or under a contract (what is known as “work for hire”), the copyright ownership might be assigned to the employer or the party specified in the contract.
These key factors are in place in the US –under the Copyright Act– and the EU, for example, although other requirements may change from one European country to another, and other regions may have different terms. The Intellectual Property Society at the University of Glasgow has a great explanation on how copyright laws are similar and how they are different in the main regions of the world.
Registering your copyright with the competent authority – In most places, the law says copyright registration is not necessary for it to be established and acknowledged and your exclusive rights respected. However, registering can offer extra copyright protection for your work. For example, the US Copyright Office gives an extra veil of legitimacy and prosecutable rights if you register your image copyright in their database; notably, this has a monetary cost.
Adding your copyright information in the image metadata – While official registration isn’t needed, establishing your copyright ownership by alternative means –what is colloquially referred to as “poor man’s copyright”– is always a good practice to protect your IP. One of those methods is embedding your copyright and contact information in the image file’s metadata. That way, anyone can easily identify you as the owner and contact you to inquire about licenses.
Watermarking your images – Another accessible method to make your copyright visible is to overlay a watermark with your name or brand onto your pictures. Digital watermarks are considered an “old school” resource and are rather ineffective nowadays as there are multiple graphic design and image manipulation tools that can remove them. However, watermarking is still useful: if your photo was watermarked and someone removed it without your authorization, that could act as proof of their malicious intent. On a final note, different software developers are now working on invisible watermark systems where markers are added to the pixels of the image and are invisible to the human eye and near-impossible to remove, plus detectable with specific software tools. These systems aren’t quite in use yet but might be worth exploring as they may become standard relatively soon.
Enforce Your IP and Protect it from Infringement and Theft
In our digital era, making sure your copyright is disclaimed across your work isn’t remotely enough to ensure it is protected. While this can feel discouraging –or simply annoying–the good news is that there are relatively easy ways to protect your work, to stop people from stealing it, and to retrieve lost income from theft.
- Keep evidence of your copyright ownership. Having documents to certify you are a photo's original owner is easy and can come in handy. Most photographers save all documentation of the image creation process –sketches, photoshoot planning, back-and-fort communication with models or other people involved in the process, etc.–, keep the RAW files for their photos as they’re the ultimate original proving they were shot on their devices, store copies of model releases where they sign as the photographer/creator of the image, and finally, create a file with the publication records for their images (if they post them on social media, or publicly display them at galleries, etc.).
- Monitor your images on the web regularly. Knowing who uses your photos and how is the simplest way to detect unauthorized uses. While the idea of manually surfing the whole web looking for copies of your work is ridiculous, there are plenty of tools that automatically scan the digital realm, identifying matches of your images without you doing anything else. Some, like Pixray or Pixsy, can even detect unauthorized uses or allow you to flag them as such and proceed to seek a resolution. Other services include LicenseGuard, a copyright infringement detecting and solving service developed by stock photo agency Dreamstime.
- Take action against infringers. When you find someone illegally using your pictures, there are several options to solve it. You can issue a DMCA takedown request –a freely obtained document from the DMCA (Digital Millennium Copyright Act, a law that frames the use of digital copies of images) informing that the receiver is infringing on your copyright and demanding that they remove your photos from their placement to avoid legal consequences–; you can hire a lawyer to send them a cease and desist letter –virtually the same as the DMCA takedown notice but more powerful– and request compensation for the lost revenue. It is possible also to go all the way to court for this purpose; finally, and what we feel is the best solution, you can sell a post-license that turns the illegal use into an authorized one, with a reasonable price that includes retroactive compensation. Fair Licensing is a service that handles post-licensing effectively, for example.
For Image Users: How to Find Information about Image Ownership
If you are a marketing creative, a small business owner, or just someone who needs to use other people’s images for projects of a commercial nature, like social media marketing or products for resale, all you’ve read so far might have scared you. How can you know for sure you are using photos legally after all this? Well, don’t worry. It’s a lot simpler than it looks.
For one, stock photo agencies are experts in commercial photography and extremely serious about copyright. They only license images they can certify are original and whose owners authorized them to license. When you buy a stock photo license from agencies like Stockphotos.com, iStock, or Shutterstock, you are legally in the clear.
And then, if you must use photos you found on the web or elsewhere outside of a stock photo depository, here is how to determine who owns the copyright of an image.
- Look for author credit – Check the image’s footer or the rest of the text surrounding it to see if the author is credited.
- Examine image file metadata – Look for details on the author and see if there is an email address or even a link to their official website for inquiries.
- Check for watermarks – If the image is watermarked, that should tell you who owns it, and you can contact them to permit you and obtain the unwatermarked version (Warning: NEVER remove a watermark on your own without the owner’s permission! That proves your intention to steal the image)
- Use reverse image search – You can try doing a reverse image search on Google or similar search tools to see if any results identify their owner.
- See the US Copyright Office Database – Checking on this public record database can be a quick way to find who owns an image in the US (BUT not finding anything here doesn’t mean the image isn’t copyrighted!)
- If your efforts are unfruitful, DON’T USE THAT IMAGE. In such cases, a good solution can be reverse-searching that photo on a stock photo site to find others with similar composition and style but available for license. iStock’s image search works great for this.
If you wish, you can also use services specifically designed to detect copyright, like Filestack's Copyright Detector.
Risks of Using Copyrighted Images Without Permission
Gotten to this point, it should be obvious: copyright infringement is a crime. As such, it can have mild to severe financial consequences for infringers.
You may suffer considerable monetary loss if you are found guilty of image theft or image misuse: you could be ordered to pay large sums in compensation, and you have to add the legal costs to that. Uses of a commercial nature —from advertising purposes to a design integrated into a product– represent a more severe transgression and usually imply larger sums in statutory damages.
Equally relevant, being found using images illegally can have an important impact on your or your brand’s reputation, with all the negative consequences that can have to your livelihood and your mental health.
None of this is remotely worth the trouble when you have perfectly affordable and easy solutions such as royalty-free stock images at your fingertips.
Legal Ways to Use Copyrighted Images
Lastly, what if you want to use a picture that you know is copyrighted? How to do that is also a lot less complicated than it seems.
Use License
We talked about stock photography, where you buy a license to use the photo in your project. A license is a written contract permitting you to use photographs. There are several forms of licensing agreements available, each with its use terms.
- Royalty-Free License is the most popular, as it’s affordable, enables commercial use, and has a lot of flexibility in how you can use the pictures.
- Rights Managed License was the norm decades ago and is still useful sometimes. As it's custom-made for each photo and can include terms such as exclusive use for some time, it tends to be more expensive.
- Custom Licenses can also exist, but in these cases, you should have an attorney double-check everything the contract states and advise whether it’s legally sound or not.
- Free Use License lets you use the image without paying but tells you what you can and cannot do with it. There are various free-use licenses, such as the many variations of Creative Commons. The risk with these is that they’re not as policed and verified as their paid counterparts, so the possibility of them being invalid is always there.
Public Domain
Public domain images are those that are not copyrighted and, thus, belong to no one and can be used by everyone. Photos enter the public domain when their copyright expires –usually, after several years from the owner's death– and when the owner cedes their copyright through a donation.
Copyright Transfer
While licenses only permit you to use the photos (and not the ownership of them), it is possible to buy the ownership of an image – as long as the owner is willing to sell. This is referred to as “image buy-out,” and it’s technically a copyright transfer: the copyright holder transfers the image ownership to you. Keep in mind, this is usually very, very expensive.
Fair Use
Finally, in the US there is a legal figure known as “fair use”, under which it can be acceptable to use copyrighted pictures without permission or payment made to the owner. Some of the main considerations for a use to be accepted as fair use include it being for nonprofit educational purposes, to have the image heavily transformed beyond recognition or identification with the original, and to be an informative use for the public good, such as in news reporting. BUT, and this is a huge but, what meets these criteria and what doesn’t is entirely subjective even in court.
Remember Warhol vs Goldsmith from earlier? The Andy Warhol Foundation defense had alleged since Mr. Warhol significantly altered Goldsmith’s photograph in his artwork, such use fell under fair use. An initial ruling agreed with that, but the Supreme Court overruled it and ultimately decided it was not fair use. Unless you’re extremely certain, risking it with the fair use doctrine isn’t wise.
Image Ownership: Common Misconceptions and FAQ
Before we leave, we'll answer the most common questions about image copyright.
How do I claim ownership of an image?
To establish that you own the copyright of an image, you can provide evidence that you are the original creator. Some ways to do this include having the RAW file for a photograph, embedding copyright information in the image file's metadata and watermarking it, and keeping time-stamped records of the creation process. You may also choose to register your copyright by filing an application and paying a fee at the Copyright Office or competent authority where you reside. While there are benefits to registering your copyright, it is not mandatory. Even if you don't register it, you still own the copyright for your picture.
Who owns the images when you take pictures as an employee?
When someone hires a photographer or visual artist to take photos for them, the contract usually states that the client/employer will own the copyright of all the images created under it. However, if the express agreement does not explicitly mention this, it is presumed that the copyright will be automatically assigned to the image creator.
How do you legally use copyrighted images?
To legally use copyrighted images, you must first obtain permission from the owner. The most straightforward way to do this is by purchasing a usage license from a stock photo website or directly from the owner. Alternatively, you can obtain a free usage license.
Do I own the copyright if I buy the photo?
When you purchase a photo, it usually means you're buying a license or the right to use it in specific ways. You don't own the copyright; you only have permission to use it. However, there are cases where you can buy the complete ownership of the copyright. If you transfer the copyright to yourself, then you will own the copyright entirely.
If the photo is posted on social media, does it mean I can grab it and use it?
No. Posting images on social media does not imply ceding copyright nor authorizing anyone to use them. All images you see on social media are copyrighted and cannot be used without express permission from the owner.
If I find the photo through Google, is it ok to use it?
No. Google is a search engine that indexes images found on the web. However, the platform doesn't own any of those pictures and, as a result, cannot authorize anyone to use them. The vast majority of photos found through Google are copyrighted. If you're looking for images you can use, you can apply the “Usage rights” filter on Google Images to see only results in the public domain or labeled as free to use. You can also search and find images that are under any of the types of photography licenses.
Respect Image Copyright to Create an Ethical Creative Ecosystem
In conclusion, image copyright is a cornerstone in the digital realm, impacting creators, businesses, and consumers alike.
Recognizing its significance, it’s critical to use images responsibly image and provide proper attribution and compensation. In this era of rapid digital sharing, heightened awareness, and diligent verification are essential for this purpose.
You are now instructed to safeguard the creative ecosystem and your own brand’s integrity by respecting copyright, ensuring fair usage, and preserving other’s intellectual property. Shaping a digital landscape where creativity flourishes within the bounds of ethical and legal frameworks is a collective effort.
