Using Copyrighted Images On Social Media
When it comes to sharing photography online as part of your social media advertising, it’s important to make sure you’re not using copyrighted images illegally – or you could find yourself with a hefty legal bill and a lot of bad publicity online. And that’s not great marketing!
This post is for my clients and other businesses, to give you some advice on how to safely make the most of using photographs when marketing through social media (it’s also useful for personal social media accounts, too!). I’m increasingly feeling that this kind of advocacy is a key part of the value I provide for my clients. I’m both a consultant and a creative these days!
Please bear in mind that copyright infringement laws vary based on country, and are continually refined and altered over time. Also, you have to consider the countries where the social media platform is being hosted, as well as your own country, in understanding how copyright infringement laws apply to you. So this is a thorough guide to using copyrighted images online, but it won’t substitute for qualified legal advice.
As a commercial photographer, I’m in a unique position for using copyrighted photos online – I’m lucky to have a huge library of images I own the copyright on (some of which can be seen in my commercial portfolio). So I know I can use those online without infringing someone else’s copyright. But, I do have to consider what could happen if someone then infringes my copyright by how they reuse the work I share (and this happens a lot). I also have to consider what usage rights I am granting to the social media platform I share them on.
Why Use Photographs Online?
It has been well documented that using images – photographs, infographics, and graphics – is an excellent way to promote your business online. Take points 2 and 3 from this thorough article – Why Content Goes Viral: What Analyzing 100 Million Articles Taught Us – produced by the guys at OkDork. Simply put, including photos and other graphics in your posts increases their reach. The rise of social media has accelerated visual literacy, and interesting images are a fantastic way to make your content stand out. With platforms such as Twitter and Facebook the sheer amount of content shared daily means there’s a lot of noise, and users struggle to find the most valuable posts. Great visuals that connect with your audience help your content to be seen, which means the links you share get more clicks and the status updates you post get more shares.
As The Content Marketing Institute point out, “Memory and retention research shows that people only remember about 10 percent of what they hear just one week after hearing it. However, according to a 2006 study, retention jumps to 65 percent when a picture was associated with the key messages being delivered.” They also do a great explanation of why that is the case, here, and they have a great guide to planning your visual content (from which the above quote was taken).
Great, So I’ll Just Head To Google Images Right Now And Get To Posting!
Hold on! There’s a massive potential downside to sharing images online, particularly if you’re using them to promote your business – you could be violating copyright infringement laws!
There are billions of photographs available for viewing online, and many of them could help your business break through the noise and be better heard on the social media platforms you use. But there are a few key things you need to know about using copyrighted images online, and how to find non-copyrighted images to use online too. A very brief explanation of copyright is that if you made it, you own it (unless you made the work as part of a work-for-hire agreement). And of course you’re safe using copyrighted images online if you own the copyright! If you didn’t make it, you don’t own copyright. If someone else owns copyright and you share their work, you’re infringing against them and can face legal action.
There are some exceptions to this. They are:
1) If the work has been given a Creative Commons Licence.
2) If the image is in the public domain. The image being online DOES NOT mean it is in the public domain. Here’s a couple of guides to what is public domain (although they’re written with specific reference to US law).
3) The image is being used under Fair Use exemptions to copyright infringement. This area of copyright is quite the murky quagmire, so I’d work on the assumption that fair use isn’t going to cover you, unless you fully understand this area of law. If you want to learn more about fair use, I’d start with Wikipedia and then start following some legal intellectual property blogs for current news.
Using Copyrighted Images – Common Excuses
But Other People Are Sharing Images Without Permission!
This isn’t a great excuse to base the legal reputation of your business on, unfortunately. By the same logic, if everyone loots a shop, it’s okay if you do it too. But we all know that excuse won’t fly in court. Same principle applies here – if you get caught using copyrighted images illegally, no amount of other people doing the same thing will change the illegality of your actions. Likewise, claiming ignorance of copyright law isn’t a defence against an infringement suit. So it’s best to learn as much as you can about using copyrighted images legally – I’ve a feeling this will become increasingly important for all of us as time goes on.
But I’m Not Using The Photos For Social Media Advertising, I’m Just Sharing Cool Stuff!
Let’s start answering this by pointing out that any content you post on social media from a business account can be considered “promoting”, “marketing”, or “advertising” your business. So, any cool photos you share via your business account could be interpreted as you using copyrighted images for marketing through social media. Let’s face it, if you’re sharing content through your business account, you’re doing so to gain followers or build relationships with existing followers. And you do this in the hope that it will help drive sales. So it really social media marketing, even if it feels like you’re just sharing some cool images.
And if you’re posting from a personal account, you’re still violating copyright infringement laws if you don’t have the right to use the image you’re sharing – publishing work you don’t own is illegal, whether it’s for advertising purposes or for personal sharing. The only difference is that using copyrighted work in advertising without suitable permission may lead to a higher cost to pay if you’re caught doing it than if you’d shared it via a personal account. Note – I said “may” because this kind of stuff can be decided on a case-by-case basis, and regulations will vary based on the country you’re in.
But What If I Link Back To The Photographer? It Isn’t Stealing If I’m Giving Them Exposure, Is It?
From the copyright infringement cases my colleagues and I have faced, this seems to be a really popular assumption/excuse. It never works. I can understand why people think it’s enough, though – we often think of social media sharing as being no different than telling a friend about a great new band you’ve discovered. But from a legal standpoint, using copyrighted images on social media is classed as distributing and/or publishing that content. Which, if you don’t own it or have permission to share it, means you’re infringing. Sorry. It isn’t the law’s fault – it’s just that social media really blurs the line between personal and public, and we’re in the process of negotiating how to effectively manage that. We’ve seen this in cases of copyright infringement, but also in other cases of online trolling and abuse. And the photographer, as copyright owner, gets to decide how their work is used and presented, so if they don’t want you to share it that is their prerogative.
What you can do is:
1) Instead of posting the image, post a link to the photographer’s website/the website where the image is posted, and a link to the photographer’s social media account if they’re on the same platform as you (but this doesn’t give you the benefits of using copyrighted images in your posts).
2) Send the photographer an email saying you’re interested in using copyrighted images they’ve created, and explaining how you want to use them. If you’re an individual or small business and you just want to give the photographer a shout out, they’ll often be cool with you doing this if you’re linking back to them somehow in the post. Once you have this permission, you’re safe to use the image. If you’re a bigger business, or you want to use the image to explicitly advertise your goods or services, the photographer may then ask you to pay a fee to licence the image for this use. You can pay the fee or choose not to use the image. If the photographer says no to your request (for whatever reason), respect this and move on.
3) Retweet/reshare posts published by the copyright owners – e.g. if I post a landscape picture you want to share with people, then it’s cool to hit the RT button, or go with an MT post that includes my @ST84Photo handle. This is a great way of using copyrighted images online without worrying about infringing, but it does mean you’re generally not linking them directly to your services.
Okay, But I Hired A Photographer To Create Images For My Website/Catalogue/Posters – I Can Use Those On Social Media, Right?
Maybe. Maybe not. It really depends on the details of the Licence you were paid for when hiring that photographer. If you want to know more about what a licence is (and why it is a really crucial document to get when you pay a photographer to provide you with images!), I have this article on what’s involved in pricing commercial photography, which explains what licences are, and how the fee is determined.
Depending on the particular job, some photographers will include using copyrighted images on social media in the terms of the licence, but social media usage is increasingly becoming something that is billed as an extra item. This is understandable – as social media has developed as a prominent advertising platform for brands, it’s only fair that the photographer creating work for a brand to use on these platforms is duly compensated for that work. Back in the day, when internet connections restricted the image sizes businesses could use on their websites, using copyrighted images online often wasn’t something worth charging extra for, but nowadays we frequently share large images and the internet as a whole has increasingly become the primary marketing channel for brands. Likewise, brands are increasingly shifting a lot of their television and print budgets across to being used for marketing through social media. This means that images used on these platforms are increasing in value to the brand. An excellent resource for more information on this is this article (based primarily on US prices – prices may vary based a lot on the country you’re in) by A Photo Editor which discusses usage and pricing of photography in social media.
The key points to remember here are:
1) Check the details of the licence(s) you have for the images you use for your business – if they don’t explicitly include rights covering using copyrighted images online for marketing through social media, you need to assume that you’re not allowed to use the images on social media until you’ve renegotiated the terms of the licence with the photographer.
2) You can email the photographer to check if you have permission to use the image on social media if you are unsure about whether this is allowed. If you do this, it helps to be as specific as you can about how you plan to use the image (i.e. is it a one-off post? Or part of an on-going social media marketing campaign?). I’d also suggest making it a matter of good practice in your business to link back to the photographer wherever possible when sharing images online (if your tweet doesn’t have enough characters for this, you can always post the image again, this time with a link to their Twitter and a little thank you for the image) – it’s good karma if nothing else, but can also help you reach more potential customers.
3) When hiring photographers in the future, social media use is something worth thinking about – discuss this with your photographer and your marketing team to decide what usage scope needs to be included in your licence to give you the best value possible from the images you’re commissioning. Use the APhotoEditor resource linked to above as a guide to pricing as well.
Well, I Also Have Some Photos Our Office Manager Made For Us, What About Using Them?
If someone is an employee of your business and they create photography for the business as part of their job, the business (or business owner) owns the images. Meaning, you own the copyright on those images and can use them as you wish, pretty much. Works made by an external contractor, freelancer, or volunteer may not be owned by the business unless there is a contract explicitly stating this.
I Need Lots Of Photos To Promote My Business, But I Don’t Want To Pay For Them? What Can I Do?
Well, you could just not use lots of photos to promote your business. If the work is promoting your business, it’s an investment that you should value as something that will help generate revenue. So it follows that if you plan on using copyrighted images online to promote your business, those photos have value and should be paid for.
If, for whatever reason (bootstrapping a start up, etc.) you really can’t pay for photographs but you still need them, you have a few other options:
1) Take them yourself – here you have to decide whether the difference in quality between you taking the photos and a professional taking the photos really matters in terms of the success the images will have in promoting your business. Let’s be honest here, if you run a local bakery, some Instagrammed smartphone photos of the day’s goods fresh out of the oven could work great and you really don’t need to be budgeting for a professional photographer to come by every day to do this for you. If, however, you sell high-end boutique fashion designs, will a blurry iPhone snap really do your designs and your brand justice? You really have to evaluate this one in terms of how well the photography you can produce in-house will match the values of your brand.
2) Look for images with a Creative Commons licence that includes the type of use you plan for the photos, or images in the public domain.
3) Consider using stock photography sites.
4) Decide on using copyrighted images illegally, and face getting caught and prosecuted. I really wouldn’t advise doing this step.
What Happens If I’m Caught Infringing Copyright?
Again, this depends on the copyright holder. They can choose not to pursue it, but generally you’ll get a DMCA takedown notice served, and be asked for payment for copyright law infringement. Often, all of this will play out in public too, so you can expect your business and personal reputation to take a severe hit as a result.
How likely is it that you will be caught? It depends, but let’s refer back to first point made in this article – you’re interested in using copyrighted images online because they’ve been proven to help content go viral on social media. If your content goes viral, more eyes see it, and the more likely it is that the photographers or artist whose work you used will also see it. So, the plan of hoping not to get caught isn’t a very good one – your best chance to avoid detection is if the content doesn’t go viral, and that’s the exact opposite reason of why you want to use the image! But, even if the content doesn’t go viral it is still very easy for the copyright holder to find out that you’ve used their work.
How? Well, one easy way is to use an image searching application, such as Tineye. Photographers like myself will upload their image to this online app, and it will then search the internet to find links to where it has been posted. I regularly check who is using copyrighted images I’ve created. Also, it doesn’t have to be the photographer who realises you’ve used their work without permission – it regularly happens that copyright law infringement will be spotted by someone else who will then contact the photographer to alert them to the illegal use of their work. There are even sites dedicated to this very task.
Cases of infringement involving using copyrighted images online are becoming more and more common. This is because more people are infringing copyright (back in the day, you’d have to build your own website or blog to share images online, whereas nowadays most of us have several social media accounts, and often also have blogs and websites of our own too – that’s a lot more content being shared online!). It’s also because technology has adapted to make it easier to discover cases of infringement. And it’s also because the copyright holders are becoming more sophisticated in their understanding of their rights as copyright holders, and expect the people using copyrighted images online to understand that they’re violating someone else’s rights.
Why Can’t Copyright Law Be Changed?
It is changing, incrementally. For example, there was a recent ruling in the UK permitting using copyrighted images if they are reworked in some way for the purpose of parody. As a copyright-owner, I think this is fantastic. The law is supporting political and cultural critique, through those very British forms of humour known as parody and satire. I wouldn’t want to prevent that. But other suggestions, such as making the internet a copyright-free zone (as some people believe) would just lead to fewer creatives producing work and sharing it online at all. I think the world would be a lot poorer for that, so I believe we need to make sure copyright is protected in those cases so the work can continue to be made.
I Have A Question You Haven’t Covered Here!
I’m not surprised. Copyright infringement law is a topic that can (and does) fill multiple textbooks. And the legal issues surrounding using copyrighted images online are currently being worked out case-by-case as we negotiate how to permit the sharing we’ve all signed up to without destroying the creative industries in the process. Hopefully, I’ve covered the main questions people have about using copyrighted images online, and done so in a pretty clear way. If there’s something I haven’t covered here, feel free to note it down in the comment box below, and I’ll do my best to answer it or to point you at another source which does!
Disclaimer: While I’m writing all of this based on my experience as a UK-based photographer (which requires me to deal with issues of copyright on a regular basis), I’m not a qualified lawyer, and this article does not constitute legal advice. If you are in serious doubt about using copyrighted images, either don’t use them or contact a reputable intellectual property lawyer to assist you in your business. The law is regularly being updated, and varies by country, so I can’t guarantee that everything int this article will be applicable to your individual case.