In part one of our blog post, Is Posting Photos On Twitter A Breach Of Chefs’ IP?, we looked at the law relating to copyright in images.
In this second part, we look at how the use of stock libraries and Creative Commons Licences can minimise the risk of copyright infringement, what to look out for when using them, and how to get copyright permission from the owner. We also cover the new Orphan Works Scheme introduced by the UK Intellectual Property Office, and the Copyright Hub portal.
As we saw in part one of this blog post, it is usually a breach of copyright to use an image without the owner’s consent. Establishing who owns copyright in an image in order to get their consent can be difficult in practice.
A simple alternative is to buy images from stock libraries or to find images available under a Creative Commons licence.
There are several image libraries out there, as you will see if you carry out a simple Google search. These include Getty Images, Shutterstock and iStock. Libraries such as these contain thousands of images that be used under licence subject to payment of a fee. There are a variety of licences to choose from, depending on your intended use.
If you want to use a photo multiple times for different projects you will need a royalty-free licence, which does not require payment for each individual use. Other types of licence would cover editorial use and there are also rights-managed services that let you choose the rights you need.
The advantage of using a well-known stock library is the huge choice of images and the range of formats and resolutions available. And most importantly, you are protected, (or at least should be protected), against infringement.
iStock gives an indemnity of up to $10,000 if one of their images is found to infringe. You can raise this to $250,000 if you require greater peace of mind. Other libraries offer similar indemnities.
Be careful if you are using an image from a smaller, lesser-known library. Check the terms of the licence to make sure you are properly covered. If in doubt about this, take legal advice.
Creative Commons (creativecommons.org) helps creative people share their work by offering model licensing terms. (Creative Commons is one of many interesting approaches to permissive licensing. A review of them is beyond the scope of this article.)
Under a Creative Commons (“CC”) licence, some, (although not all) of the owner’s rights under copyright law are surrendered.
An advantage of this type of licence is that the terms are standard and widely understood. As a result, search engines such as Google or Flickr can easily tell you what rights you have to use an image.
There are a variety of Creative Commons licences you can use. A pure attribution licence allows you to use an image commercially, share and modify it, so long as you attribute it to the owner.
A CC BY-NC-ND (Attribution, Non-Commercial, No Derivatives) licence only lets you use the unaltered image in a non-commercial context; you have to give credit to the author.
Like stock image libraries, you should check the terms of the Creative Commons licence for the image you are using.
One danger of using Creative Commons searches is something we mentioned in part one of this blog. What happens if the uploader doesn’t own copyright in the image? Innocence is no defence. You could still be liable for damages despite thinking you have a licence from the owner. If you really must have a certain image, you may have to carry out your own investigation in order to find the actual owner.
Even then you may not be out of the woods. Has the so-called owner assigned their rights? Or, are the rights owned by their employer? Then there are practical considerations. Even if you get an indemnity from the owner, would they have the funds to cover your losses if you tried to enforce it?
The safety-first route for commercial use of images is to get your images from a well-known image library, if possible. This doesn’t always involve a cost.
Getty Images recently released millions of free images. There is a snag though. Their use is subject to restrictions. These include:
- You must embed the images on your website or through social media using Getty’s own system.
- Getty reserves the right to collect analytics data relating to your use of the images.
- You can only use the images in relation to events which are newsworthy or of public interest.
- You are not permitted to use them for commercial purposes.
Despite these restrictions they are still a useful resource for some people, such as bloggers.
As the name suggests, orphan works are those whose creator (or other owners) cannot be identified.
This might conjure up images of dusty old books, or visuals on the internet that have done the rounds without ever being attributed to a creator. However, the scope of the orphan works scheme goes well beyond this, and applies to tens of millions of UK creative works.
In October last year, the UK Intellectual Property Office (UKIPO) introduced the orphan works licensing scheme, which is designed to:
- Protect people who wish to use orphan works by granting a licence for their use
- To reunite owners with their lost works by offering a searchable database
- To remunerate owners of orphan works should they ever come forward
Of course, these licences do not come free and users will need to pay for the right to reproduce the work. The fees collected are partly to cover an administration charge for running the scheme, and partly to remunerate the owners of copyright work, if they claim ownership in the future.
However, unlike the other licensing models, the UKIPO will need to be satisfied that the applicant has carried out a diligent search to find the owner before they grant a licence to use orphan works.
This could involve contacting a range of artists’ associations, searches through multiple online search engines, checking for watermarks, reviewing stock image libraries, liaising with trade bodies and collecting societies, and making other investigations, such as inspecting relevant museum and other catalogues.
The Copyright Hub
Kick-started by a government fund, The Copyright Hub is a non-profit organisation that runs a web portal to help users and copyright owners request and grant permission to use copyright works.
The idea was to make it as easy as possible to find and license content. The initiative should help increase revenues for copyright owners, reduce instances of copyright infringement, and provide a useful source of creative materials.
The Copyright Hub also helps to raise awareness of copyright protection and licensing, by:
- publishing information about copyright through the online portal;
- offering an accessible platform so users can find out how to get copyright permission; and
- making it easier to trace copyright content back to their owners.
So, in practice, the aim of both the Copyright Hub and orphan works is to implement Hargreaves’ recommendations in order to make it easier for people to locate and license creative works.
The complexity of copyright
As you have seen, using images downloaded from the Internet online is fraught with danger. While some improvements have been introduced by the law recently, the situation is still complex.
Litigation and the payment of damages is not uncommon. So, the safest course of action is to assume you can’t use an image without the consent of the owner. Even when you get consent, it is sensible to take legal advice to understand the terms of the licence. Alternatively, use a reputable licensing platform.