Neovlašćeno korišćenje fotografija
Have you ever…?
- Downloaded an image from Google Search
- Used an image with a watermark and thought it was OK to do so
- Erased an image with a watermark and used it in a project
If you nodded to any of those statements, then you’ve probably committed an act of copyright infringement. What’s worse, claiming innocence and (Fair Use Policy) is no longer enough to clear you (or your organization) of legal lawsuits or demand letters.
Thank your lucky stars if you have been using unlicensed images without being caught by the copyright owner.
But if this has happened, the right thing for you to do is to remove the images immediately, or expect the worst to happen — copyright owners may send in a written request to get the web hosting provider to take down your website. This is called a cease and desist, or more commonly known as a DMCA takedown. Take note that removing infringing materials from your website or projects will not absolve you completely from previous misuse but it is better than being a sitting duck. And as proven by WayBack Machine, things that go on the internet often stay here forever.
5 Things You Need to Know about Copyright
- Copyright is a form of Intellectual Property (IP) which includes patents, industrial design, trademarks and trade secrets. Unlike most Intellectual Property which require the IP owner to submit an application for registration, copyright comes into effect from the moment of creation and is exclusively owned by the creator.
- Copyright law is strictly national, however most countries extend protection to foreign works under conditions that are standardized by international copyright treaties and conventions; such as the Berne Convention and the WIPO Copyright Treaty.
- Copyright only applies to works created by humans; hence, works by non-human entities like animals are not copyrightable.
- Copyright applies to original literary works, paintings, photographs, films, music, choreography, sculptures, etc. but NOT ideas and facts.
- Copyright, like other Intellectual Property, has an expiration date which is dependent on the country from which the creation originates. Generally, copyright expires 70 to 120 years following the death of the creator.
5 Rights for Copyright Owners
- PERFORMANCE
Copyright owners have the right to perform the copyrighted work. - DISTRIBUTION
Copyright owners have the right to distribute the copyrighted work. - ADAPTATION / MODIFICATION
Copyright owners have the right to create new works based on copyrighted work, or modify the copyrighted works. - DISPLAY
Copyright owners have the right to display the copyrighted work in public. - REPRODUCTION
Copyright owners have the right to reproduce the copyrighted work.
Usually, copyright ownership goes to the creator, with these exceptions:
- Works created in the course of employment are owned by the employer
- Commissioned works are owned by the person who hires and pays for its creation
- Works created by two or more persons are jointly owned by the authors
- Works whereby the copyright ownership was transferred or sold to another party
Should I take copyright seriously?
Yes! Copyright infringement, whether intentional or unintentional, can result in massive monetary damages due to legal lawsuits and settlement claims. In more serious cases, criminal penalties such as imprisonment may also be imposed. Take, for instance, this case where photographers net thousands in compensation after a spike in copyright infringement cases.
How can we avoid such penalties?
Easy! Just get your content from stock content providers. These folks ensure that all content supplied on their websites has legally undergone required checks for quality control, release forms, and copyright clearance (logos, branding elements, etc.)!
Is there any content that I can legally use for free?
Yes! Stock content under the Public Domain is free to download and free to use. However, there is a catch here. Although a work may be free to use, it is not free of authorship and ownership (refer to case 8).
Did you know?
In 2016, a stock content provider was sued for USD 1 billion for licensing and
distributing photographs that were donated to Public Domain by a well-known photographer.
There are a few ways for content to be categorized under Public Domain:
- Works released by governments
- Works donated by content creators
- Works where the term of copyright has expired
- Works created before the implementation of copyright law You may use these content as you like. Just note that you may need to look into privacy and publicity rights if you intend to use the content for commercial purposes.
Copyright in Practice
1st case
Can I use images found on Google?
That depends on the individual image found by Google’s search engine. If the images are under Public Domain or Creative Commons license, then you may be able to use them. Otherwise, it is illegal to download the image — be it for personal or commercial use. Even if you crop and modify the image, it is still illegal! You can filter the search result on Google under ‘Search tools’ and select the license from a dropdown list at ‘Usage rights’. Alternatively, you can go to specific websites that host Public Domain and Creative Commons licensed content. However, the onus is on you to do due diligence and determine that the images under these licenses are actually owned by the uploader. 123RF’s advice? Purchase a licensed content (we recommend royalty-free license) to save yourself from any headache that may occur.
Yes, you may as long as the images are under Public Domain or Creative Commons license.
2nd case
Can I remove watermark from images?
This is considered a case of willful infringement if you remove (or crop out) watermarks on images. Should the copyright owner decide to pursue legal action, you could be in a lot of trouble. With technological advancements, there are many ways to trace an image, even when you have renamed, resized and retouched the file. Our take is that it is not worth the potential legal problems that might arise. It is best to obtain the appropriate licenses or written permission from the copyright holder to use the image — even if that will set you back a couple of dollars.
No. It is illegal to remove the watermark from copyrighted images. You may get into trouble as this is considered as willful copyright infringement.
3rd case
Can I use Royalty-free standard license images on physical merchandise?
Printing royalty-free images on physical items are allowed under the standard license for up to a stipulated amount (for 123RF, it’s 500,000 copies) if the items are to be given away for free e.g. as promotional merchandise at a trade show. If the merchandise is for sale or if you need to print more copies than the number stipulated under standard license, you will require an extended license. You can read more on Extended License at 123RF website.
You can use the image on merchandise as long as it complies with the licensing terms.
However, any usage that will directly generate revenue will require an extended license.
4th case
Is it safe to use stock content from free websites?
There are many websites that host free stock content for commercial usage without requiring attribution. However, you have to be aware of the risks if you use these files as the uploader may not necessarily be the copyright owner. These free websites will always ensure that they will be indemnified and not be held responsible for any legal claims.
Here are some examples of the Terms and Conditions compiled from free stock content websites:
“ You agree to indemnify and hold harmless [Free Provider 1] from and against any and all loss, expenses, damages, and costs, including without limitation… ”
“You agree to indemnify and hold harmless [Free Provider 2] … from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, legal and accounting fees)…”
“By entering into this Agreement and using the Website, you agree that you shall defend, indemnify and hold [Free Provider 3] … harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs)…”
Putting it simply, these terms are there to inform you that the free stock content providers cannot be held responsible for any claims or damages that arises due to the use of the content found on their website. They are just distributing the content! Hence, beware.
You can, as long as the images are under Public Domain or Creative Commons license. Do note that you might be liable for copyright infringement if the image was uploaded without the consent of its creator.
5th case
Does copyright law apply to social media (Facebook, Twitter, Pinterest, etc.)
According to copyright law, yes! Believe it or not, we are all publishers to a degree on social media. Whatever we update on Facebook, tweet on Twitter, or share on Pinterest is copyright protected. That also means that you can be liable if you use someone else’s content that was shared on social media!
Did you know?
In year 2013, a photographer was awarded USD $1.2 million when the pictures he posted on Twitter were used without consent by two media companies.
Bear in mind that copyright law applies as well on social media and sharing content that is not created by you may fall under copyright infringement. You should be safe as long as you do not repost copyrighted content.
Yes. Social media postings are copyrightable. Sharing copyrighted content that does not belong to you without the owner’s consent can potentially get you into trouble!
6th case
Are model and property releases important?
How would you feel if someone came up to you and told you that you were endorsing a product or service that you are not aware of? You would probably be very upset as they used your likeness for promotional purposes without your consent. The same goes for model and property releases. It serves to protect]all parties involved — mainly the model or property owner, distributor, and end-users.
Here are a couple of situations where model or property releases played an important role:
- Scenario 1: A man saw his house featured on an advertisement for a bank. He sued the bank as he never consented to his house being used for commercial purposes. Luckily, the ad agency working on the ad for the bank were able to produce the property release with the previous owner’s signature. In the end, the owner dropped the claim.
- Scenario 2: A model sued an ad agency for misusing her photos on an ad promoting STD prevention which casts her in a negative light and puts her reputation at stake. In this case, the model won the lawsuit as the agency knowingly used the image without the model’s prior consent.
Model and property releases are important depending on the usage of the content. If you intend to use an image for advertisement (especially if the content are promoting sensitive topic), it’s best to check for a model and/or property release to protect yourself from lawsuits or complaints.
7th case
Who owns this photo?
You may have seen this infamous monkey selfie circulating the internet in 2011. A user subsequently uploaded a high-definition of this image to Wikimedia in 2014.
David Slater, whose camera equipment was used by the monkey to take the selfie, laid copyright claims to the photograph and requested Wikimedia to remove the image from their collection. Wikimedia refused on the grounds that copyright applies to the creator of the photograph and in this case, it is the monkey. As copyright laws are only applicable for humans, the photograph was deemed by Wikimedia editors to be in the public domain. That led to an ensuing lawsuit between Wikimedia and David Slater. As of the time of writing, Wikimedia still retains the image in their collection.
PETA also filed a lawsuit against David Slater to secure the copyright of the image, on behalf of the monkey allegedly named Naruto.
While copyright law applies to human creations only, this selfie was taken by the monkey. Thus, copyright law at the time of this writing cannot be applied to the photograph. It is still being disputed in court on whether animals are entitled to copyright.
8th case
Is Mona Lisa copyrighted? How about the works created based on Mona Lisa?
This is arguably Leonardo da Vinci’s most famous piece of artwork and also one of the most replicated and reinterpreted art pieces in the world. In fact, Mona Lisa was replicated and reinterpreted by Leonardo da Vinci’s own students! Mona Lisa never enjoyed copyright as Leonardo da Vinci lived in a time prior to the enactment of copyright law. That said, although copyright law did not extend to the painting, authorship of the Mona Lisa remains with Leonardo da Vinci while ownership of the original painting resides with the French government. As is with Public Domain or copyright-free material, Mona Lisa is widely used in digital and printed materials with and without modifications. New works that demonstrate substantial modification from the original work are eligible for copyright protection on the basis that only the modifications are “copyrightable”.
Other well-known creator’s works in the Public Domain:
- William Shakespeare
- Ludwig van Beethoven
- Jane Austen
- Lewis Carroll
- Sir Arthur Conan Doyle
Copyright only applies to works that are created after the establishment of copyright law. Works derived from Mona Lisa may only have the modifications protected bycopyright law.
9th case
Can I use pictures of famous deceased people?
This is a very complex question. The pictures, as we have learned, belong to the photographer. However, the person’s name, likeness, quotations, rights of publicity, trademarks, and copyrights of the person may be protected by law. In that case, written permission will be required from their next-of-kin, commercial estate, or the corporation who owns their right of publicity when using their image for commercial purposes.
Yes. As long as you have obtained the permission from the owner of the deceased person’s right of publicity.
Did you know?
Mickey Mouse remains a copyright-protected work to this day. Under the 1909 Copyright scheme (which was the existing copyright law then), Mickey Mouse should have been released into the Public Domain in 1984. However, when the expiration date grew closer, Disney lobbied Congress for an extension. Congress’s overhaul of copyright law in 1976 allowed Mickey to escape being in the Public Domain till 2003. When the expiration drew nearer again, Disney’s team lobbied Congress yet again for an extension. The result? Sonny Bono Copyright Term Extension Act of 1998. Mickey had once again evaded Public Domain, this time till 2023. With only four years till Mickey’s impending Public Domain sentence, it is likely Disney’s team will be lobbying for another extension soon.
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