Do you know which images you can save, share, and publish with on social media, and the internet at large? Do you own the copyright? What are the image usage rights? What is a copyright? The amount of images on the internet boggles the mind, but what are the rights associated with each image? Every time someone snaps a photo on their phone or a camera, image rights are at work.
In this ultimate guide, we’re breaking down the U.S. legal standards for image rights and what they mean for you.
According to the Oxford English Dictionary, a copyright is “The exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material.”
A work is automatically protected by copyright from the moment it’s created. You don’t have to register your work in order to be protected. You simply gain additional protection from registering your work with the U.S. Copyright Office.
The right to “reproduce the copyrighted work in copies”
Rights to “prepare derivative works based upon the copyrighted work”
The right to “distribute copies… of the copyrighted work to the public by sale or other transfer of ownership…”
The right to “perform the copyrighted work publicly” (in the case of performing arts)
The right to display the work to the public.
Fun fact: The U.S. Copyright Office is actually a division of the Library of Congress, formed in 1870.
3 Factors that Determine Copyrights
Before you own the copyright, your work must first adhere to these three conditions. If the three factors apply to your work, then the copyright (and its legal protections) is automatically assigned to you.
Fixed in a tangible medium. The work that you create must be viewable or hearable. For example, a model walking the runway in a fashion show does not have a copyright. If the model is photographed or filmed, then those photos and videos have copyright protection.
Original. In order to hold a copyright for your work, the work must be original. If there’s nothing new under the sun, then how do we know if a work is original? Basically, if it’s not stolen from someone else, then it’s an original work. More on that in the Fair Use section of this article.
Creative. However, the bar for creativity is set pretty low. Even the U.S. Supreme Court admits that “the requisite level of creativity is extremely low; even a slight amount will suffice. No matter how crude, humble, or obvious…”
In the case of photography, the photos and copyrights are owned by the photographer. The only exception is if that photographer is an employee or the images are subject to an agreement.
Also, a copyright does not transfer automatically with the actual work. If you paint a picture, the copyright continues to be yours, even after you have sold the original work.
Work for Hire
If a work was created within the scope of a person’s employment, then the work belongs to the employer. The copyright would most likely belong to the employer. However, there are certain cases where the copyright is retained by the original creator.
Copyrights can be sold and transferred. This is especially common in publishing, where the author or creator may assign the copyright to the publisher so that the publisher can maintain the copyright.
Works with No Copyright
Certain works have no copyright, such as works made by the federal government. Works in the public domain also are not protected by copyrights. Public domain works either had a copyright that has since expired, or the copyright was waived by the original author, such as the images on free stock photo websites. This means that image usage rights aren’t an issue and you can use it anywhere.
How do I find the copyright owner?
For works created after 1975 and registered with the Copyright Office, you can visit https://cocatalog.loc.gov to look up the author using their searchable database. You’ll need to find the copyright owner to negotiate image usage rights.
The Case of the Nike Swoosh
The Nike logo (the “swoosh”) was created by Carolyn Davidson in 1971 and Nike purchased the copyright for just $35. With no licensing agreement in place, Nike was able to use the logo however they liked.
Nike grew the swoosh logo into one of the world’s most recognized logos. Carolyn Davidson didn’t have any rights to it past the $35 that Nike had paid. However, Nike later gave her company shares in acknowledgment for her amazing work, even though they were under no obligation legally to do so.
Do Copyrights Expire?
Yes, but not to worry! For works that are created after 1977, the copyright will not expire until 70 years after the author’s death. If the work was made by multiple people, then the copyright will not expire until 70 years after the last surviving author dies.
According to the Duration of Copyright and Rights in Performances Regulations Act of 1995, we’ll have to wait 70 years after J.K. Rowling’s death to celebrate Harry Potter’s entrance into the public domain!
Fun fact: Mark Twain actually helped to establish the term length of copyrights. During a congressional hearing in December 1906, he argued that copyrights should be held for the author’s life, then for 50 years after to provide for the author’s family. Although the 1909 provided for a shorter term of 28 years, plus 28 more if it was renewed, the current law passed in 1978 dictates a life term plus 50 years, just as Twain had recommended.
Copyrights Before 1924
As of 2020, did you know that you are free to use any work that was published in the U.S. before January 1, 1924? These copyrights have expired and the works are considered public domain.
Short phrases or small groups of words are not protected. In certain cases, a company or person can trademark one of these phrases to provide additional protection, but they are not protected by copyrights.
Facts are not protected, but the wording might be. If the fact is common knowledge, then it is not protected by copyright. The only part that is copyrighted is the exact phrasing of the fact by an author. For example, if the Earth is round, that fact is not protected, but a person’s presentation of a round Earth in a painting would be copyrighted.
Ideas are not protected, only the execution of that idea. For example, the idea for a television show about cops in New York City is not a new idea and has been done numerous times. Each has its own copyright because of the way the idea was executed. The idea is not protected, but the work and its unique presentation of the idea are protected.
Works created by the federal government are considered public domain. So, if you want to sing the federal tax code in your next country song, you can because the tax code is public domain.
Anything that isn’t protected by copyright is considered public domain. These images and other pieces of content are free to use for the public and don’t require licensing agreements or fees.
These images are options for anyone who doesn’t have a budget to license images, or for brands who are looking for images that can be modified and altered to create new works.
If you are not the copyright holder for an image, but you would like to use it, then you need a licensing agreement. Through a licensing agreement, the copyright holder can grant permission to use the image in specific ways.
Types of Rights for Images:
Digital rights pertain to the digital version of the image. In this exchange the photographer or creator would be sending an image file, rather than a physical print of the image. Having the digital rights to a photo means that you can distribute it anywhere in the digital world, but you can’t use if for commercial purposes unless you also have the commercial rights.
Print rights allow you access to a hard, physical form of a photograph. If the print release includes reproduction rights, then the owner of the print can reproduce it to make anything for personal use (for themselves and their family). However, they would not be allowed to use them commercially unless commercial rights are also obtained.
Under print rights, you cannot claim the work as your own or edit/alter the image. You have the right to own and use the print for personal use, unless other rights are granted in addition to print rights. In other words, with print rights you could photocopy an image a hundred times to use as wallpaper in your own home, but you wouldn’t be able to sell the wallpaper and you wouldn’t be allowed to put the wallpaper up in anyone else’s home.
Editorial rights are typically for images that are used for educational purposes. Editorial-licensed images can be used for blogs, newspapers, magazines, print publications, and other educational resources. These are all considered non-commercial uses.
However, editorial rights cannot be used commercially at all. Even advertorials (articles that promote a specific brand or product) cannot use these images, as these are considered commercial uses.
In order to make money with an image, you’ll need commercial rights to the image. Commercial rights are required for any uses that could result in monetary gain for your brand, including marketing, paid ads, website use, and other promotions.
Commercial rights are required before a brand can use an influencer’s content, as the brand is using the images to generate revenue.
Any image used to promote or sell for a brand should have commercial rights. This commercial designation also encompasses a broad scope of business uses. Product packaging, company stationery, corporate blogs, email marketing graphics, a brand’s social media posts, and influencer-created content would all require commercial rights in order for the brand/business to use the image.
Retail rights are any image that is sold to the consumer. These include family portraits, wedding photos, school yearbook pictures, and other pictures that are meant for personal use and circulation.
With retail rights, you do not have the right to claim the work as your own and typically you should attribute the work to the original photographer in some way.
If you have the retail rights to an image and you’d like to use it commercially or in editorial, you can typically renegotiate with the photographer to obtain additional rights to the images.
Social rights is a relatively new designation. It is a combination of commercial and digital rights, but is specific to images on social media platforms. With social rights, a brand/business has the right to repost a work on their social media. They do not necessarily have the right to alter the image or use it in paid ads, unless specified by the author of the work in the agreement. Social rights are only for reposting an image on social media. Social rights would also be needed in order to share a photo meant for personal use.
Items to Specify in Licensing Agreements
Before you enter into a licensing agreement for an image or group of images, you’ll want to make sure that your needs are represented within the agreement.
Attribution & Image Usage Rights
If you have to credit the original creator of the work, then this is called “attribution.” Crediting the original creator is common with influencer marketing, meaning that the brand will list the influencer who created the content whenever they promote that image.
If you expect attribution, it is important to be specific. On social media, attribution can be covered in a number of ways, like tagging, mentioning, or linking, so the creator should specify exactly what kind of attribution they are looking for. You should also specify if the attribution should be done as just a name, as a link, or by listing their social handle.
Royalties & Image Usage Rights
Royalties are payments to the copyright owner in exchange for each use of an image. They are paid every time the image is used, so this does not include flat fees paid for the licensing agreement.
For example, if a brand has commercial rights to an image with a royalty for each use, then it can make 100 postcards featuring the image, but the copyright owner will receive a fee for each of the 100 postcards. This might be a fee for each or a percentage of the sale.
When an image is called “royalty-free,” then the user does not have to pay for each use of the image, but instead the image is considered “paid in full” when the license agreement is enacted.
Commercial and NonCommercial Uses
Does your brand plan to use the image to promote its products or services? If you plan to use an image for revenue-generating activities, then you’ll need commercial rights to the work.
If you plan to use the images for educational or personal use, then you can opt for a noncommercial license. In almost all cases in which a business licenses an image, they will need a licensing agreement that includes commercial rights.
Time & Image Usage Rights
In each licensing agreement, you can specify the amount of time that the brand/business has rights to the image. Does the brand get to use the image forever (“in perpetuity”)? Or a year? Or a week?
Specifying a time limit is not required and in most cases, not needed. If a brand reaches an agreement with an influencer to be able to share an influencer’s content on social media, then a time constraint is probably not necessary because there is only a certain window in which the content would be timely and worth sharing. Time constraints are more common with images like stock photos or any content that is licensed with exclusive image usage rights, which we’ll cover next.
Exclusive Image Usage Rights
The owner of a copyright, or creator, can license an image to as many people as they’d like. If the owner wants to license the image to more than one person, then they would be granting non-exclusive image usage rights. However, some brands may need exclusive image usage rights, which means that they are the only ones who would hold a license to that image during the time of the agreement.
Exclusive image usage rights ensure that the brand is using an image that isn’t appearing anywhere else on the internet. It helps the brand who licenses the images to maintain their aesthetic and their particular look without having to compete with other brands for that image.
Domain & Image Usage Rights
Each medium that an images is used is considered a “domain.” Each place that you plan to use an image should be listed in the agreement clearly. Having the rights to share on your website doesn’t mean that you also have the rights to share on social media. Each place is considered a separate part of the license. Digital rights is a grouping that includes everywhere on the internet, but you may want to break down the different places you plan to share the image in order to set clear expectations for both the owner and the licensor.
The owner of the copyright should specify if the agreement can be transferred to anyone else. Can the company sell the license to someone else if they no longer need it?
Sublicensing is when a company assigns some of the rights from the agreement to someone else. Most creators don’t want sublicenses of their work, but brands may want to specify if they have other groups or business entities that need access to the image.
Editing/Modifying the Original Works
Can you crop the image, apply a filter, or photoshop the models in the image? Unless specified, most image rights don’t allow you to modify the original work when you use it.
Resizing is not considered a modification to the work, but anything that changes the visual presentation of the image is considered a modification that requires permission.
In addition to requiring permission for modifications, the owner of the copyright can request approval rights, so that they get to see and approve each modification to their image before the company distributes it.
Licenses can prevent the use of images in anything considered “sensitive.” If the image is used within a controversial industry or the image appears to endorse certain subject matter, then additional permissions are required within the licensing agreement.
If you have an agreement in place that doesn’t cover something about usage rights, you shouldn’t assume that you are granted that benefit. Instead, you’ll need to go back to the original creator to clarify your rights to their images.
Fair use was created in the Copyright Act because not every use of a copyrighted work amounts to copyright infringement. The doctrine for fair use creates a common sense allowance for the use of copyrighted work.
What is Fair Use?
Fair use is a doctrine within copyright laws that allow for certain uses of copyrighted materials.
According to the Oxford English Dictionary, fair use is “the doctrine that brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder.” In fact, the quote from the Oxford English Dictionary qualifies as a “fair use” because the quote is meant for teaching readers what fair use is.
Fair use protects education especially, but may also help other industries to use portions of copyrighted materials.
How Do I Know If Fair Use Applies?
Fair use does not always apply to your use of someone else’s images. Instead, fair use requires that your use of that image meets certain criteria.
Fair use applies if:
You are using the copyrighted material for comment, criticism, teaching, research, or parody. For example, the show Saturday Night Live can use real people and real events in their comedy sketches because they qualify as parodies and are typically a criticism of the original.
The content is for educational purposes.
The amount of the work used is small compared to the length of the whole work. For example, it is not fair use to quote an entire book, but it may be fair use to quote an entire paragraph out of a 100+ page book.
It does not affect the value or market for the original work. If the owner of the copyright of the original work can prove that your use hurt their revenue, the value of the original work, or the market for selling the work, then your use is not protected by fair use doctrine.
The Supreme Court has said that affecting the value of the original work is the most important factor in determining if something is fair use or not.
Is the work transformative?
Creating a derivative work, or work that uses the copyrighted material, is also protected under fair use doctrine. However, the work is only protected if it is transformative.
For example, courts found that using someone else’s image in online conversations is not considered transformative and is therefore not protected by fair use. However, Richard Prince, an “appropriation artist,” used selfies taken from social media in an art exhibit because he included comments from the platform. In his case, including comments with the image made it a criticism of social media and the new work was considered transformative. His “New Portraits” exhibition was considered fair use.
Copyrighted materials used in new artwork or altered imagery may be considered fair use because they are transformative. However, it may still be wise to obtain permission from the copyright holder so that you don’t have to face potential copyright infringement charges later on or prove that your work constitutes fair use.
Images on Social Media
What Happens to My Image Rights When I Post on Social Media?
Social images are governed by the same copyright laws as everywhere else. However, social media users are accustomed to certain types of posting and sharing within the platform. This may complicate the ways that copyrights are enforced on social media.
If you post an image (that you own) to social media, you still own the copyright to your image. Each social media platform are licensing the image when you post it on their site. You are granting them the right to display the image on their site, in addition to any other rights that are specified in the user agreement for the social platform.
Does Sharing Other User’s Content on Social Media Violate Their Copyright?
Sharing another person’s images on social media may in fact violate their copyright, but only under certain circumstances. User agreements for each social platform allow for sharing each other’s content without infringing on copyrights. However, you are not protected when sharing an image to another platform. This is copyright infringement. For example, hitting the share button on Facebook is protected in the user agreement, but copying an image from Pinterest to share on Instagram is not.
Instagram is unique where reposting is concerned. Technically, reposting is not allowed by Instagram’s user agreement. However, Instagram has built-in functionality to share content from others to your Stories or within direct messages.
If you want to share someone’s work on social media and it might be protected, then a simple message on the platform to get permission will protect you legally.
Images for Brands
Brands are in constant need of images in today’s visually-driven world. Proper permission and licensing is essential for these images so that brands can prevent legal complications.
Fortunately, there are more and more tools appearing every day to help brands get the images that they need.
What is Creative Commons?
“Creative Commons is a nonprofit organization dedicated to building a globally-accessible public commons of knowledge and culture.”
Creative Commons provides tools to assist in finding public domain or royalty-free images, as well as providing resources to help with licensing images.
Creators can submit their work to Creative Commons and assign a license, so that brands and other people can use the images according to the terms set by the creator.
Creative Commons creates a simple and standardized way to grant copyright permissions, so it is a wonderful resource to brands and businesses to document image usage rights.
How Can My Brand Use Stock Images?
Stock images are a popular way to infuse images into the rest of your brand’s content strategy. Stock images are readily available online through resources like:
Each stock image site has their own licensing agreement for using their images. When using them for your brand, mark the photos either in a named folder or with a file name so that you can remember where you downloaded them from and what licensing agreement applies to each photo.
Depending on the agreement, stock images can appear on social media, on your website, and on your blog to help you tell your brand’s story.
How Do I Report Copyright Infringement?
Having an image stolen can be frustrating, but you are protected by copyright law.
Finding Your Images Online
Use Google image search or sites like https://www.tineye.com/ to see if your images are misused online. For especially popular content, you’ll want to run these searches on a regular basis to protect your copyright.
The first step whenever you see one of your images online is to reach out to the person posting it. In most cases, the person will gladly take it down. They may not have even known that they were infringing your copyright. An email or message to the person is a much quicker solution than other, more aggressive options.
Most social media platforms and websites have a way to report copyright infringement and will help protect your copyright. Filling out the form on that social network’s website can help you claim the image. Then the social network will take down the content and help to resolve the issue with the other user.
Seek Legal Counsel
If none of the previous actions resolve the problem, then you may need to see a lawyer. They can let you know the legal options you have to protect your copyright.