We are often asked whether it is lawful to use a particular image from the Internet on a website or social media page. This question can take many different forms. Some believe that images placed on the Internet are in the “public domain,” meaning that these people believe images on the Internet are freely available to all and not subject to copyright protection. Others acknowledge that copyright protection may exist for some images on the Internet, but believe that a lack of a copyright notice or a lack of clear evidence of the identity of the author of the image extinguishes any copyright that may have once existed. These beliefs are not correct, and the reason why is clear upon a further examination of copyright law in the United States.
As we address on our copyright page, copyright exists in any creative work at the time it is fixed in a tangible medium of expression. The work need not be novel or unique, but simply original, meaning that the author—the person responsible for the creative input in the work—created the work without copying the work of another. Photographs and other graphic images are usually subject to copyright protection, assuming they are minimally creative, and therefore have copyright protection as soon as they are created.
This rule begets two other important, related rules that are codified in federal law. The first rule is that a copyrighted work does not have to include or be accompanied by a copyright notice to have protection. The second rule is that registration with a government authority, in particular the United States Copyright Office, is not required for copyright protection to exist for a creative work. The rules requiring registration and the publication of a notice for copyright protection were abolished decades ago when the United States, along with most other industrialized or Western countries, signed a treaty known as the Berne Convention.
In light of the above, any random image on the Internet is probably not available for free, completely unencumbered use. Since copyright protection arises whenever a creative work is fixed, an author’s subjective intent to seek copyright protection is irrelevant to its actual existence.
This means that the safest images to use are those subject to a clear license—a grant of permission from the copyright holder to allow another to use the copyright work. To obtain a license usually requires the licensee to pay a fee; sites like istockphoto.com, apimages.com, and corbisimages.com all provide images subject to these kinds of paid licenses. Other images at places like Wikimedia Commons may not require a fee, but still may be subject to a license requiring attribution and disallowing commercial use. Even if a person finds an image purporting to be licensed for free and without restriction, it’s possible the person making such a representation is not actually the author or rights holder, and therefore the person could be without the authority to make the representation in the first place. Apart from licensed images, the only truly free “public domain” images are those produced by the United States government, or those that are very old (about 100 years old, at least), and those kinds of images are unlikely to have much utility in modern websites or marketing.
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