Clients often ask us about the legal ramifications of image, video and copy usage on their websites. When is it okay to use someone else’s content and when is it a big no no?
We decided the best thing to do was bring in the big guns and speak to the experts, so we talked to Timothy Borham from Sajen Legal who has kindly answered the most common questions we get in this guest blog for us.
A copyright is a legal device which covers all creative content such as photographs, graphics, music, sound effects and films and gives the creator exclusive rights to sell or publish their work. The Internet has given us unprecedented access to copyrighted materials, which in turn has lead to an increase in breaches. Although a lot of copyright infringement goes unpunished (usually because it is too costly to pursue legal action) that doesn’t necessarily mean you’re safe to do it.
Is copyright automatic as soon as you create an image or take a photo for your website?
Or does it require you to file special paperwork?
Copyright exists immediately upon creation of the original work. In Australia, there is no mandated registration system. Some companies offer a copyright registration service but it is unnecessary. In the modern digital age, most word processing and photography is all electronically datestamped so the benefits of registration have lessened even further.
If you provide attribution and/or a link back to the original image or graphic, does that mean you can use the image?
No. Use of another person’s material requires their consent. Attribution in a practical sense can reduce the likelihood an author would take issue with the use of their material, however, it doesn’t change the legal fact that it is a breach of copyright to use someone’s work without their permission.
What about “Fair Use”?
Fair use is a common law concept in Australia which means it is considered on a casebycase basis. In situations where there is no commercial benefit from the attributed use, then fair use circumstances may arise.
If you want to review a product, such as a book, can you use the photo from the original owner?
If you take a photo of the item (eg. the book), then you own the copyright to the photo you have taken. However, utilising a photo someone else has taken still requires their consent.
With millions of people sharing images online every day, how are platforms like Pinterest getting away with letting people share images that they didn’t originally create themselves?
The short answer is that Pinterest doesn’t let people do that (legally, not practically). There is a process in place with Pinterest to report copyright infringement and their policy is then to take down any infringing works. Pinterest take a number of clever measures to ensure that they (as the platform publisher) are not liable for copyright infringements by the individuals. The same goes for YouTube and many other online sharing platforms.
Why do so many copyright breaches go unpunished?
Usually, if breaches of copyright are not pursued it is on the basis of commerciality. It is generally not worth the time, effort or expense of suing one person for use of a photo or graphic. However, if someone has used the works in connection with a business enterprise* (eg. in marketing material or on their business website), you should immediately seek legal advice. Keep in mind, that it doesn’t need to be a business website per say for it to aide a commercial enterprise.
*business enterprise: is also developing a social media following because it can lead to advertisement and other promotion related benefits. Entrepreneurs who create that following by using your copyrighted works might also be receiving a commercial benefit even if it appears to be a personal page.
If the original owner of the image contacts you about using an image on your website or social media, is it just a matter of cease and desist, or are there other implications?
Ceasing to infringe someone’s copyright is not necessarily the end of the matter. The infringed party may have rights to sue for damages or an account of profits. If you have inadvertently (or deliberately) breached someone’s copyright and are called out on it, we recommend seeking an indemnity and release as part of the process to ensure that is the end of the matter.
What about “transformative work”? If you change an original image, how much does it have to be changed so that it’s now a new image and no longer is at risk of copyright infringement?
There is no hard and fast rule. The 15% change myth is exactly that: a myth. How much something needs to change will often depend on how unique the original works is to begin with.
If you take an image and incorporate it into an infographic or another bigger image is it at risk of copyright infringement?
Yes, as you are still using the copyrighted image without consent.
If you create a unique piece of content like an eBook or online course, how can you protect it from people copying it or sharing it around?
From a practical perspective, there are a number of encryption and document protection methods that can be used to make copying more difficult such as data locks and watermarking. From a legal perspective, you need to both understand and enforce your rights. If you know someone is copying your works and you do nothing about it, it may be more difficult to enforce your rights later on as your inaction may be deemed implied consent.
***Disclaimer: These responses are provided for information purposes only and general in nature. They should not be relied upon as advice in any specific set of circumstances. Each situation is unique and there may be times when these general comments are not applicable or entirely accurate. Sajen disclaims all liability for any reliance or action taken on the basis of the above text.
Thank you to Timothy Borham from Sajen Legal who answered all these questions for us. You rock Timothy!
If you have any further legal questions, please feel free to give them a call on 07 5458 9999 or touch base with them on Facebook.
FYI: If you want to make sure you play it safe, check out our top free stock image websites we love to use.