Studies suggest, that images are 60,000x easier for the human brain to process than just text, so it’s no wonder that everyone wants to include visuals on their website and social media. Not only are they a more efficient communication tool, but they’re also aesthetically stimulating – which overall generates more a ‘feel good’ vibe to your branding and communications.
But image content can be more difficult to craft than words – potentially requiring a lot more time, effort and equipment if you want to do it right. You may think the reverse is true – hello Google image search! – but the legal implications of misusing other people’s images can be big.
If you haven’t been paying attention to the copyright issues surrounding the visual content you use, you’re in a really risky position. Most images are protected by the law, and copyright laws can be very strict in favour of the creator’s ownership rights. One mistake could cost you almost everything.
So, if you want to avoid a hefty bill and a serious legal headache, read on.
Disclaimer: All of the detail in this post is information only. If you need legal advice you should consult a lawyer in your jurisdiction.
What exactly is copyright?
According to the British Intellectual Property Office: “Photographs, illustrations and other images will generally be protected by copyright as artistic works. This means that a user will usually need the permission of the copyright owner(s) if they want to perform certain acts, such as copying the image or sharing it on the internet.”
So any kind of image – be that a photo, illustration, diagram or painting – is subject to copyright protection. Doesn’t matter whether that’s a professional photographer being paid for a shoot, or you out and about snapping things with your phone. Gaining that legal protection does not require any paperwork, and grants exclusive rights. It’s automatic.
It’s worth stressing that ‘automatic’ bit again. There doesn’t even need to be the magical © (copyright) that you see on images. Copyright exists as soon as the creator has made it. So don’t go thinking a lack of © means something is free to use.
In fact, it’s safe to say that you should always assume that online content is protected by copyright. This means that by default, you’re not allowed to use any images you find online (in a Google search for example, but also social media) without prior permission of the creator.
But, of course, this being the law, this simple rule of ‘permission’ can work in complex ways.
To clarify the dos and don’ts, and understand how images can legally be used, Trendeavour spoke to Lucy Wheeler; legal consultant and owner of Lucy Legal Consultancy – about the legal implications of image copyrights. Lucy is on a mission to support entrepreneurs by providing clear, straight-talking legal information, and is super knowledgeable when it comes to IP rights.
So let’s talk about using images online. I suppose you get this question asked a lot: what kind of images can we legally display on our website/social media?
L.W. You can freely share most content that belongs to you. The principle of copyright (which is one of the intellectual property rights) is that copyright is an asset that you have on anything that you created. If you create something (whether it be a photo or a drawing), if you are the creator then you automatically own the copyright. In the U.K. you don’t have to register it, whilst in the U.S. there is an option to register (though you don’t have to, because either way, the creator owns the rights).
If you are sharing anything that you have not created, then, unless you’ve purchased it, you’ve potentially breached the copyright regulations. These aim to protect the creator.
You can get permission to use different images. For example, if you bought stock images for your website they come with a licence, or often, if you work with a photographer, they may give you a licence or a permitted use.
Editor’s note: A license hasn’t given you ownership of the image though, it’s just created a legally binding contract about how you can use it. Think of a licence as a permission slip. It will allow you to do certain things with the image for a specific period. For example, a licence may permit you to use a photograph on your own website and social media but not in any marketing material and must at all times credit the photographer. A photographer can sell lots of licenses so that a hundred people can use her photo of a sunset. However, if you obtain the copyright, then you now own the image, and you could even stop the photographer themselves from using the image again, even though they created it.
L. W. One of the most common questions I get asked all the time is “can I share an image as long as I credit somebody”? And the simple answer to that is NO. Just because you credit somebody, it doesn’t mean you have the permission to use it. It’s not your image.
Many times people assume that others would want their images to be shared – based on the idea that you’ll give them ‘exposure’ by sharing with your 5,000 followers. But that person doesn’t necessarily want your 5,000 followers to see it. I get a lot of messages saying: “I’m in big trouble because I used a photo, but I’m right aren’t, I because I credited them?” That’s not actually the case, because that image didn’t belong to you.
However, some areas become murky and the law doesn’t necessarily work like you’d think.
For instance, there was a recent court case in America where a photographer posted their images online on Instagram, and someone had used them and credited them. The photographer argued that copyright law – as normal – meant the person shouldn’t have used them. But Instagram’s T&Cs state that if you put your work on Instagram, these rules no longer apply. So the person who used the photos built their case on this, saying the Instagram terms meant the copyright wouldn’t apply anymore.
On this occasion, the case was decided in favour of the user, rather than the photographer. But, the case might be appealed and overturned, and it is important to remember that this is a US judgment that may not apply in other jurisdictions and certainly doesn’t apply here in the UK.. (That’s a legal lesson in itself, just because you see one person doing something it doesn’t mean that they are doing things correctly).
Another one that surprises people is Canva. People think that if they create something on Canva, then they are the creator, and they own that. That’s wrong. Canva retain all the rights to everything you create on their platform, because you’ve used their program, their templates, their fonts… You might have used your creativity, but you don’t own the rights. Canva permit their users to create graphics and download them but there are strict rules such as you cannot use stock images as part of a trade mark, you cannot remove the copyright notices from stock images and you cannot produce final designs larger than 600px by 800px. You must use Canva in accordance with their terms and conditions.
Graphic design platforms give you a licence to use their products, but it doesn’t mean necessarily that you therefore gain full rights to put the images you create on social media (or wherever). And it certainly doesn’t mean that you can use people’s photographs without their permission. The legal position is that you cannot do that.
Do we have to give credit to the photographer (or anyone else: such as the model, stylist, MUA): even if the photo was commissioned by us?
L.W. When it comes to crediting the photographer for images that we commissioned, it all depends on what rights you have obtained for those images.
To put it simply: if you commissioned it, you paid for it and you own the rights, then you can use it how you want. No need to give credit.
However, if you’re on a photo shoot, and the nature of your agreement stems from asking “can you take photos of me, and as I have loads of followers I will tag you over time” – if that’s the relationship, then you must tag the photographer every time.
In terms of other people being in the images, you have to get what’s called a ‘Model Release Form’, and get their permission to use it. For example, if there is a film crew filming in the London underground, they have to go around and get everyone to sign a release form so that they can use it in the film. You have to get permission of people to use the image of them.
What are the legal implications of using stock images on our websites/on social media sites?
L.W. When you use stock websites, the terms of all of those are different. Some of them say you don’t have to credit them, but some say you do, so just read the terms of their licence that they give you.
Often for stock images you pay a price, and then you get the licence to reuse them, and then you can use them without crediting anybody. Every single one will have slightly different terms, so make sure to check the licensing agreement of each one, because they will all be different. A license is basically a contract to make your own arrangements about how the images will be used, not fixed by legislation.
Editor’s note: Some sites offer free images – but these are still technically controlled by a license (often called Creative Commons), it just means that the license has indicated money doesn’t need to change hands. And that license may carry conditions for use still – like ‘not for commercial’ use, so even if you’re on a ‘free images’ site you need to keep your eye out.
Also, Google just made fining and getting permission easier by providing links to the copyright owner and copyright notice metadata – wherever it’s available (check their post on this here: https://www.blog.google/products/search/image-rights-metadata-google-images/)
Nowadays many companies use User Generated Images in their marketing campaigns. How to be legally protected when using these type of images?
L.W. User Generated Images work along the same principles: if you have someone’s permission to use the photos, then you can use it, if you don’t have permission, then you can’t.
If a user tags a brand, the brand can see that, and they should reach out to the user to get their permission to use these images by diverting them somewhere where they can agree to the terms.
So if you’d like to use an image, just send a message and ask if you could use it. As long as you ask in advance, people are generally happy to agree. It’s usually times when people don’t ask in advance when people get upset, and say ‘you should have just asked’. That’s the rule, you have to get someone’s consent.
Are there any other issues that we need to pay attention to?
L.W. In the U.K. there is a thing called NLA Media Access. It’s a company that manages rights for content creators – particularly big publications like newspapers. They monitor the use of creative media by third parties. It may be that you don’t hear anything straight away after incorrectly using an image, but there are systems that monitor how long you have used an image for and seek to recover damages if you’ve used content from one of their members. They’re efficient, targeted and designed to get the maximum compensation from you.
(Ed: the professional hitmen of copyright claims!)
Why might this matter? Imagine you release a PR for a client and it is included in a trade magazine. You use an image of that publication on your website to show the brilliant coverage you got. It doesn’t matter that you wrote the article or provided the visuals of your product to the magazine, if you are using the publication’s image on your site, NLA may be knocking on your door claiming incorrect usage.
Editor’s note: Manipulation, memes and GIFS
One defence to copyright is if a work is ‘transformed’. We won’t get into this because what ‘transformed’ means is really complex and up for debate. Some people will try to tell you that making Memes or GIFS – exercising some work or creativity on the image – will be enough to make it new and mean copyright doesn’t apply, when in fact each creator then owns the individual parts.
Simple answer: don’t risk it.
One of the vital things to remember about copyright law is that you cannot, must not, say ‘but everybody is sharing this, so I guess it must be OK’. Hundreds of thousands of people are breaking the law every day – in theory – with some of their image sharing. But it’s not worth the resources for a photographer (or a company like NLA) to track down your Auntie June and try to claim damages because she posted a meme about wine and yoga. It may be worth pursuing you though, if your business looks profitable – so this is why you have to hold yourself to a much higher standard than your average public Facebook user.
So in a nutshell: copyright is owned by the creator, and if you’re not the creator, you need permission or buy a licence to use those images. It’s that simple. But remember, you’ll need documentation that you have paid for the rights, commissioned the work, or have model release consent for the images of people. You can sort this permission out before the photos are taken or afterwards, but make sure everything is in place before you publish.
When in doubt, just don’t risk it. Twenty minutes of glory on Facebook is not worth 20 months of legal struggle.
Designer. Founder of Trendeavour. Fashion & retail specialist by day, content creator & digital marketing geek by night. Coffee and instagram addict. Crazy about her dog.