Can I use that image?

Hi everyone,

It’s my first Embarketing blog, Cristy has already mentioned that the whole team will be doing blogs this year so you will be hearing more from me throughout the year. I’ll try to keep mine as interesting as I can, (though this one is a bit legal, dry and required research), and I’m hoping to focus on more visual things in the future (maybe take you on some landscape photography journeys or some how-to’s of what I’ve learnt), mixed with stuff I just find interesting and fun about the work we do here. For my 1st blog we are enjoying the exciting and dynamic world of copyright law, enjoy!

James


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Can I use that image?

Images and other content are becoming increasingly more important in the social media age, but sourcing those images can be a tricky, knowing you rights and obligations under copyright law is imperative if you want to do the right thing, but also avoid legal issues.

Our images

Before we get into the details of copyright let’s talk about what we do for our images. Here at Embarketing we do social media, websites, marketing & more, but where do we get our images from for our Clients?

  • Stock images - These are in a way the easy option, there are lots of sites to choose from, that range in cost and quality, and what they lack in that personal touch, they make up for in variety and options, there are pretty much stock images of everything. But that lack of personal touch can sometimes be obvious. You can often tell those images weren’t for the business involved, the people in them aren’t “real” or that the images are even from this country.

  • Us/Me (James) - A lot of our clients have used my images, many may not even realise that they’ve come from me. I take a lot of landscape photos of the Riverina and it gives us a great library of images to choose from that come from the region. One of the reasons I took up photography with Embarketing was due to how few local images are out there that we could use. The other option is I come in store/business and take images for you. In 2018 my photoshoots varied from accountants, a history festival, an eye surgeon, lots of food images, travelling with delivery drivers….. and lots more.

  • You - Our final source for images is you. Sometimes that means the client takes their own images, other times they hire a photographer (there are heaps of fantastic photographers in the region) and the images are passed on to us to use, or maybe we receive a usb or a dropbox full of images that we get the ok to use by the client. Often when upgrading to a new site we get permission to strip the old site of images to repurpose for the new site.

Who owns the photograph?

Well it depends, which I think is the usual legal answer to anything, but a rule of thumb in Australia is that you can use the images for the reason that they were purchased, but outside of that the photographer owns the copyright and you require permission (and potentially require payment) for other usages. There are a few exemptions for things like government use and also commissioned portraits. The photographer doesn’t need to apply for copyright, but receives it automatically as the image is created.

  • Professional Wedding/Birthday/Family photos - You are fine to share and show everything to your family and friends, but you can’t use those same images for profit. If you were thinking of starting a fashion line with your wedding picture on a t-shirt then you’ll need to call your photographer.

  • Business - What was the image for? Did you organise some photos for your website? Then you’ll need to check if you can use them in a poster or on social media. Often photos may be bought for general use for your business, meaning that you could use it across any media for your business, but you would still need to contact the photographer if you wanted to pass the image along to another business.

  • Commissioned portraits - These are an exception, as commissioned portraits are yours to do with as you like without further permissions.

  • Government - Are also an exception and images taken for them can also be used without further permissions.

The risks.

So what happens if an image is used that shouldn’t be? Firstly the person using the image needs to be caught, which in an age supersaturated by images seems unlikely, but if you ever tried Google Image Search then you know that images can be searched, and there is a growing industry of businesses that search for images looking for copyright breaches. We are aware of numerous examples where agencies and businesses in Australia have received an invoice in the mail from a photographer (out of the US and Australia) or representing a photographer (such as Getty Images), with a hefty bill in the $1000’s for breaching copyright with the threat of a lawsuit attached.

  • In Australia - The person who holds the copyright has the right to chase lost earnings and damages through the court system, as well there are penalties for copyright breaches. More information can be found here.

  • Overseas - it depends on the country and their copyright laws, but as mentioned above if images are used without checking you could find yourself or your business being chased for money by lawyers in foreign countries, for amounts that were far more expensive than if stock images were used or a local photographer hired. We have heard of examples of settlements ranging close to the cost of new car.

Please don’t take images

If you see an image online that you like please don’t just use it because you assume it is “free”. You might see a nice image on another business’ page, however they have either paid for its use, taken the image themselves or they may be using it in breach of copyright.

I’ve had images used without permission before. The image I’ve used for this article was used without my permission recently & locally. The person who used it probably had no idea or concept of the time I put in to get the images from this shoot, the scouting of the locations, waiting for canola time, waiting for a foggy morning before getting up too early to get in position, plus all the time to edit the image to get it looking the way I wanted. They can be surprisingly time consuming, top landscape photographers can spend a whole morning or weekend for 1 or 2 photographs.

It would be similar to someone walking into a car lot and taking a car to run errands for the day without asking, “They’re not using it so why not? They can still sell it later, and I’ve seen other people driving those cars before.” I promise you that the car dealership would not be happy if that happened.

Protecting yourself/ Doing the right thing

Realistically protecting yourself from copyright breaches, like most things, is pretty simple. If you are dealing with a photographer directly you can communicate with them, discuss what the images are for and their usage at the time or prior to purchase. If you purchase an image online, look at the terms and conditions, they will outline the usage. If you see an image you really like online it can’t hurt to contact the site or person using it and try to get in contact with the photographer, just asking may get you the result you want.

Final Note.

I’m not an expert on copyright law, all of this information has come from a quick google search and reading a couple of sites, and the bits and pieces of what I have picked up since I started photography. Mostly what I say are general rules, if you have any concerns that you have breached copyright or you receive correspondence suggesting you have breached copyright, I would highly recommend seeking proper legal advice.

Sources:

Australian Copyright Council

Australian Copyright Consideration for Photographers - thelawtog