As a law firm marketing agency, we write our blog articles primarily with lawyers in mind.
Today, we address a topic that you might expect attorneys to already know about, but it’s one that is nevertheless getting a lot of law firms in trouble.
It’s also a topic that applies to everyone in every field, so even if you’re a non-lawyer who’s never stepped foot in a firm, this one’s still for you.
The question at hand: copyright, images, and when you can (or can’t) use someone else’s photograph or graphic design in your own work.
One of our clients, an excellent law firm with a sterling reputation, recently got in trouble for using an image they didn’t own in their firm’s newsletter. Like a lot of people, they had an urgent need for a relevant photograph and ran a quick Google Image search to save the day.
Google Images is a godsend to a generation that craves, expects, and demands visual aid. (And because we’re an attorney SEO agency, we’ll also nod toward the marketing benefits we can get for our law firm clients by using Google Image SEO strategy the right way.)
But with convenience comes temptation. It’s all too easy to find the perfect image in under ten seconds, right click that bad boy, and drop it into your newsletter / blog article / what have you.
Today, we’re going to take a simple look at the bright-line copyright rules surrounding internet images… and we’ll also throw in some practical, “non-binding,” experience-based advice about when your Google Image search is more or less likely to catch flak from somebody with a copyright claim.
How Could a Law Firm Make a Copyright Images Mistake?
We work with lawyers every single day, but we are not ourselves esquires. The irony of writing about a legal issue to legal experts isn’t lost on us. But marketing for lawyers is our specialty, and it’s in that context — marketing publications — that law firms most frequently run afoul of the copyright rules.
Here’s how and why:
- Not all lawyers are well versed in IP rules. Copyright Law is usually an elective in law school, and it doesn’t turn up on the MBE (Multistate Bar Exam). Some states touch on it in their bar exams, but it’s never really regarded as one of the “major” topics of law. Even among attorneys, copyright and trademark laws are sometimes treated as more of a specialty, owing in part to the fact that patent lawyers (who must have additional certification) tend to practice in those same areas.
- “Fair Use” is fuzzy. We mentioned “bright-line rules” earlier, but when it comes to the question of fair use, the lines are harder to see. There is no universal yes/no answer for when something qualifies as fair use, and that can lead to some confusion — especially among newer lawyers or those unacquainted with IP law.
- The person putting together your law firm newsletter might not be a lawyer. You might know the rules, but what about your office manager, in-house marketing manager, or the Photoshop-savvy paralegal you’ve tasked with creating or reviewing your publications?
- “Color of title.” We use the phrase loosely here. In real property law, “color of title” refers to the mere appearance of ownership, such as when a person takes title to property in good faith but there is a defect in the deed, rendering it legally invalid. In a more general sense, the phrase can refer to an innocent mistake of fact or law. That’s what happens sometimes when legal images appear on law firm websites without permission. If the image looks like a stock photo, the law firm might assume in good faith that their marketing agency acquired it through legal means, such as an image license subscription service or a royalty-free stock gallery. Similarly, lawyers might reasonably assume all the graphics on their site came from their in-house graphics person. But that isn’t always the case.
- Even if you know better, temptation is powerful. Let’s face it: grabbing a graphic from Google Images is easy. And you probably aren’t going to get caught. “Besides,” you might think, “it’s just for my little email newsletter… what’s the harm?” But the copyright holder might see things differently.
Copyright, Images, and Fair Use 101
In general, before we dive into the specific context of using legal images from the ’net in law firm website and newsletters, it’s helpful to review some of the foundational tenets of copyright law as it relates to fair use and images:
- A copyright is a creator’s right to exclusively use and distribute his or her original work. Copyright is of limited duration (for most modern works in the U.S., it expires 70 years after the creator’s death) and is subject to certain exceptions and other limitations.
- Copyright generally attaches at the moment of creation. In other words, the creator is automatically the exclusive owner of the work — even if they never take any steps to register the copyright, publish the work, or apply for trademark protection, etc. (Copyright and trademark are two different things.)
- Photographs are the exclusive right of the photographer. The instant the photographer clicks the camera’s shutter (or the iPhone’s photo button), they become the owner of that work and can license or sell it as they please.
- Copyright also includes the creator’s right to display the work publicly and to create derivative works — so you can’t use their public display of their work as justification for using it yourself, nor can you create your own derivate work and call it “original” (again, generally speaking).
- Copyright does not protect general ideas, only particular expressions of ideas.
- The public policy behind U.S. copyright law has always been to balance the interest of the creator with the interests of the public. So the law does recognize your interest in making new or creative use of someone else’s original work (and your readers’ interest in seeing what you can do with that work.) But the usage must be fair, and that brings us to the doctrine of…
“Does this qualify as fair use?” It must be one of the most-asked questions of the digital age. And perhaps we’ll someday get a clearer answer to that question. But for now, courts are the only ones who can ultimately decide. In assessing fair use, judges weigh several factors on balance:
- The purpose and character of the use (for example, are you using it for commercial purposes, or for nonprofit or commercial purposes?); and
- The nature of the copyrighted work; and
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market value for or value of the copyrighted work.
These four factors are set forth in 17 USC § 107, home of U.S. Copyright Law. Notable, a court must consider all the factors in tandem, but the first is often given the most weight.
Understanding Copyright Rules for Legal Images: “Can I Use This Picture?”
It goes without saying that if you own the image yourself — because you’re the photographer or it was work for hire — or you’ve purchased a license to use the image, you’re in the clear.
Likewise, you’re good to go if:
- The image is in the public domain, or
• Is used with express permission from the copyright owner (and hey, it never hurts to ask), or
• Has been made available for public use, royalty free (under a Creative Commons license, for example, but then you must be careful to follow the terms of the license with specificity… a Creative Commons license is not carte blanche for unlimited usage of someone else’s work, and not all Creative Commons licenses are the same).
But what if you definitely don’t own the image and don’t have clear permission to use it? Your next question becomes whether it qualifies as Fair Use. That question gets complicated when it comes to using legal images in law firm publications. Here’s why:
- If you’re writing about the law, you’re probably engaged in commentary or education. These are the hallmarks of fair use. But does the image you’re using clearly relate to what you’ve written, or is it merely incidental? For example, it’s one thing to write about bus accidents and use a haunting photograph of a famous bus accident… it’s another to write an article about the photograph itself. In context, either could qualify as fair, but the latter scenario comes much closer to the meaning of “fair use.”
- Just for the record, courts have historically shown great deference to photographers who haven’t yet made their images available to the public. But since you’re probably not digging far beyond Page 1 of the Google Image search, we doubt you’ve stumbled upon anyone’s private storage account by mistake. But keep this in mind also: the more creative a photo is (as opposed to a “documentary photograph”), the more protection it gets… of course, defining creativity is a difficult task, even for courts and scholars.
- As an attorney or legal practice, you are a commercial enterprise. Even if what you’re writing is educational and appears in a free newsletter, if it promotes your law firm in any way, courts might construe it as commercial.
- With text, movies, and songs, it’s easy to use only a small portion of a work. But with images, that’s a challenge. If you crop much, you’ll be left with something unrecognizable. Scale it down to low resolution and the creator might have a claim against you for harming their reputation by compromising the quality. So the “portion of use” factor will probably weigh against you (or at least won’t weigh in your favor)… though it helps if you’ve only used the image in a single blog post where it was relevant instead of, you know, the home page and fifteen other landing pages.
- Providing credit and a direct link to the original author/source can help. But credit isn’t the same thing as permission, and exposure isn’t the same thing as compensation. Don’t assume you’ve qualified for fair use simply because you’ve put a spotlight on the creator.
As you can see, fair use questions usually fall in a gray area. As a law firm engaged in commercial publication, you want to have a really strong first-factor case to overcome your shortcomings on the other three fair use factors.
As a Practical Matter…
A certain ethics system has evolved — and is still evolving — around the use of images in social media, and the law hasn’t quite caught up. Case in point: memes, which are arguably fair-use transformative works. See also: images that were seemingly posted on social media for the very purpose of being seen and used by the public.
Based on our experience, we think you’re less likely to get stung by a copyright infringement complaint in the following scenarios, even if they don’t quite qualify as ownership or fair use:
- The image is promotional in nature. For example, let’s say you mention Erin Brockovich in your environmental law blog, and you include an image of the movie poster to add visual interest. You might not have a legal claim to the image, and fair use might not factor out in your favor. But as a practical reality, movie studios are not in the habit of suing people for reproducing their posters. They want their images to be shared — and the same goes for publicity stills, official product images, and just about any other image created by a company to promote its works.
- You’ve done your due diligence, provided credit, and are willing to comply with requests to remove. If an image has been so widely shared on the internet that you can’t possibly determine who originated it in order to contact them for permission (or to confirm a Creative Commons license), you should probably assume that, legally speaking, you can’t use the photo. But when images are so widely circulated that they take on a life of their own — as is the case with memes or so-called “viral images” on social media — it’s unlikely you’ll end up as a defendant for using the image in a similar fashion. Provide whatever attribution you can, and be willing to immediately remove the image upon the first request from the copyright owner (or, alternatively, to negotiate a license).
In both these cases, only use internet images if you’re comfortable doing so — at your own risk.
Above all else, remember these three rules:
- Assume every image is protected by copyright law until you confirm otherwise
- Just because everyone else is doing it doesn’t give you a legal right to do it (even if social custom is evolving such that you might have an ethical right).
- If it’s on your website or in your newsletter, you’re liable for it.
Figuring Out the Internet Isn’t Your Full-Time Job
Avoiding copyright infringement is especially important for law firms. Like anyone else, you don’t want to get sued. But you also have another important consideration: your reputation as practitioners of a noble profession.
Getting busted for stealing a photograph can be a professional embarrassment and could even lead to ethical problems with your state bar. That’s why it’s important to err on the side of caution.
As a law firm marketing agency, we often handle our clients’ graphic and image needs for them. Our clients trust us to keep them out of trouble — not only for images but also with copywriting. (As many law firms have learned the hard way, if you hire cheap writers with no legal background to do your blogging for you, you’ll likely end up with plagiarized work!)
We care about our clients’ content because content makes them grow. And that’s literally the only reason Black Fin exists: to make law firms grow.
Need some help growing your firm using the internet the right way? Contact Black Fin and find out what we can do for you today.