Copyright can be a positive or negative legal issue for most bloggers. On one hand, you can use the concept to protect the design of your blog and the content on it. On the other, you can be accused of copyright infringement if you use content from another source without permission. One area where copyright infringement almost always becomes an issue for bloggers is when you use free images on blog pages or posts.
When discussing copyright, it always helps to start off with a quick overview of the topic. Copyright applies to any tangible, fixed “work.” Examples include the text in a novel, the code in software, music lyrics and, yes, photos and images. The person who creates the work in question owns the right to distribute that work, to wit, the “right” to “copy” it. Anyone else wishing to use the work must obtain permission from the copyright owner. If this is not done, then the copyright holder has the right to pursue legal options based on the concept of copyright infringement. You can read more about copyright here.
As a matter of public policy, copyrighted works may be used without the permission of the copyright owner in particular circumstances. These exceptions are referred to as the “fair use” exceptions. You will see the term thrown around in forums and social media by people who do not understand the concept or how it plays out in court.
Fair use is a complicated concept that is highly dependent upon appellate court rulings. Whether fair use is a justifiable defense to an infringement claim depends on the specific facts present. As a very general notion, a work can be used without the permission of the copyright holder under the fair use exceptions for:
- Criticism and Commentary;
- News reporting;
- Scholarship; and
Here is where the problems begin and commentary on the forums, social media and websites go off course. The above list consists of examples of fair use exceptions, not absolute defenses applicable to all situations.
Consider the teaching exception. Handing out a classic novel to students to discuss the issues raised in the book is clearly going to be allowed under the fair use concept of teaching. Ah, but what if you charge the students for the books? What if you buy one book and then make 30 copies for the students?
The truth of the matter is the majority of fair use situations are not clear, and this is where bloggers run into problems. The ultimate determination is usually only determined at trial. In the trial, a court will evaluate the fair use claim of a blogger by considering the following four factors:
- The purpose and character of the use, including whether such use is of a commercial nature or is 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.
Only then will the determination of whether a fair use exception applies be made by the court. In the meantime, the party claiming the fair use exemption will have spent thousands of dollars on legal fees. Even if the party wins the case, one has to evaluate whether spending tens of thousands of dollars on attorneys’ fees and court costs count as a “victory.”
As a blogger, you are told images can help keep people on your site and help with conversions. The question is, of course, where do you find images for your blog that don’t come with copyright concerns?
Let me be blunt. Free images are dangerous. There are two reasons for this concern. Many websites offering free images are simply affiliate websites set up to show you a few free images and then a bunch of paid images from Shutterstock.com or some other stock photo site with an affiliate program. You have no idea if the free images on these sites are licensed from the original copyright holder or simply something the affiliate copied from Google images or some other site. If you are sued for copyright infringement for using one of these free images without authorization, you are not going to escape liability by blaming the affiliate website. At best, liability will be shared.
Then we have Creative Commons licensed images. Are there free images available under the various Creative Commons licenses? Absolutely. There is a big “but” that comes with these licenses. In most cases, you must give attribution to the copyright holder. You must list the name of the copyright holder, date of copyright and any other information required by the copyright holder. If you do not, and most bloggers do not, then you are violating the license and the copyright owner can still pursue you for infringement.
When using “free images”, make sure you are intimately familiar with the licensing requirements and only pull images from a credible source. Creative Commons is one of the more credible sources, but keep the concept of attribution in mind and read the language in each license very carefully.
Evaluating The Risk
Should you use free images or not? As always, a risk-benefit analysis can help you decide.
On the positive side, you get a free image to use in a post on your blog.
On the negative side, you need to be worried about being hit with a copyright infringement lawsuit one day. If this occurs, you could be dragged into court and end up paying tens of thousands of dollars in settlements and attorneys’ fees.
An alternative potential negative would be if the copyright holder started filing DMCA takedown notices against your blog. These requests would be filed with the DMCA agent for your hosting company, which would react by immediately taking down your blog. The requests would also be served on the search engines, which would potentially de-index the blog. This development would, of course, terminate all your rankings and any traffic the blog receives from the search engines. Google also considers DMCA takedown notices when ranking sites.
Ultimately, you are looking at two very negative potential consequences compared to a fairly measly benefit. This is particularly true when you consider how cheap it is to legally license images from reputable sources.
Is there a safe solution for images? Yes. Why not just pay to license images so that you don’t have to worry about copyright infringement issues? Unless you are kicking out new posts for your blog every day, you are not going to need a large number of images each month so the cost should be minimal.
Getty Images is the top site for buying licensed images. I wouldn’t recommend Getty because the prices are very high. I use Fotolia.com for this blog, which provides images for $1.35 or less depending on the volume of credits you purchase. The more you purchase, the cheaper the cost. In theory, I post a few times a week depending on my schedule, which means I spend roughly $70 every three or four months for a total of 50 images. If you can’t afford this nominal cost for your blog, you probably need to reconsider your business approach.
Fotolia is hardly the only stock image site on the web. Other well-known sites include Shutterstock.com and iStockPhoto.com. Browse each site and you should quickly get a feel for which one has the images that best fit the theme of your website.
When it comes to copyright issues, is using free images on your blog a smart move? You will have to decide for yourself, but the low costs of licensing images from stock photo sites suggests a fairly obvious answer.
Richard A. Chapo, Esq.