Photo by William Bayreuther on Unsplash

Images that infringe copyright on websites

STEPHEN ANNICCHIARICO

TECHNOLOGY & IP LAWYER

It’s no secret that most startups are “cash strapped” and (understandably) founders opt against seeking proper legal advice. In particular, many founders fail to seek advice regarding website compliance matters (i.e. use of images on their website, that they had their sister’s boyfriend’s cousin’s friend build for them as a favour). Given that virtually all images (which were not taken or bought by you), require the owner of such images (e.g. photographer) to consent to any use of such images, this approach can prove costly.

What’s copyright?

Copyright is the automatic right to something original that has been created.  For example, as soon as you take a photograph, you hold a copyright in that image, and the sole and exclusive rights to publish, and enjoy the commercial benefits of, that image. Dealing with someone else’s photograph, such as uploading it to your website, that you have not created or taken yourself (or do not have the consent of the photographer to use) will likely constitute a breach of copyright.

Exceptions*

There are various instances whereby the use of someone else’s photograph is permitted

Research or study

The use of photographs for research or study is permitted to some degree.

Criticism or review

The review or critique of photographs is permitted, provided that there is an acknowledgment of the photograph by its title or description, with reference to the author of the photograph.

Parody or satire

The imitation, or ironic and sarcastic ridicule of a photograph is permitted, however it needs to be expressed in a new form. For example, a caricature of a photograph may enliven this exception.

Reporting of the news

Use of someone else’s photograph by media outlets for the purposes of reporting the news (i.e. by newspapers or magazines) is permitted provided that there is an acknowledgment of the photograph by its title or description, with reference to the author of the photograph.

Connecting factors

In order for copyright to exist, the photograph must exhibit some sort of connection with Australia. This may be established where the photographer is an Australian citizen or resident, or the photograph was taken or published in Australia by the photographer.

The image I’m using wasn’t taken in Australia, so I don’t need to worry about copyright, right?

Not quite. Foreign works establish a connection with, and hence obtain protection in, Australia through the Berne Convention. The Berne Convention is an international copyright treaty (signed by 176 countries, including Australia) which notes that works (including photographs), originating in countries that are signatory to the Berne Convention (Contracting States), will be afforded the same protection in each of the other 175 Contracting States (Other Contracting States), as is provided to nationals of the Other Contracting States. For example, a photograph published in the United States may be capable of obtaining protection in Australia through the Berne Convention, in accordance with the Copyright Act 1968 (Cth), as if such photograph was published in Australia by an Australian resident or citizen.

But how will I be caught?

Free online resources such as “reverse image searches” (i.e. image searches that allow you to upload an image and find where the image has been used online), make identifying copyright breaches easier than ever. For your information, here is an example of a popular service: https://www.tineye.com/.

What images can I use on my website then?

Multiple royalty free image repositories are now available that provide you access to stock images (at no cost to you) which you can use on your website. Alternatively, you can purchase images from multiple websites that sell licences to use specific images (for quite reasonable prices).

The gist of it

1

Copyright simply means that a person has created something and is legally entitled to exploit all rights attaching to that creation.

2

Don’t use images that you don’t own, unless:

  • you know they are royalty free images; or
  • you have the consent of the image owner; or
  • such use is for the purposes of research or study, criticism or review, parody or satire, or the reporting of the news.

*The above-mentioned exceptions apply on a case-by-case basis, and are not exhaustive. Before dealing with any material you do not own, you should always consult with a lawyer to confirm you will not be infringing any party’s rights.

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