While the Web has been a godsend to those who deal with images, the Internet’s vast resources have also complicated many professional lives. “Here we are, in the final stages of producing our next issue, and once again many of the images we most want are available on the Web,” e-mails Cable Neuhaus, editorial director at Newsmax. “Due to the decentralized nature of the Internet, however, it’s exceedingly difficult in some instances to determine who, if anyone, has rights to these images. We frequently find that many of the best images available to us are those that have been uploaded to YouTube.com or Flickr.com, generally by (seeming) amateurs.”
When possible, Newsmax contacts whoever posted the image and request permission to use. Fees are often paid and ownership is acknowledged with an appropriate credit line. But it’s difficult these days to ascertain the exact legal owner/source of a Web image, adds Neuhaus, “especially if the very same image is widely available around the Web, which is often the case.”
Defining the Law
Any image found on the Internet may be subject to copyright. “In fact, the creator of an image can claim copyright even if this claim is not made explicit in a caption or a watermark,” says Bernhard Debatin, associate professor for multimedia policy at the E.W. Scripps School of Journalism. “Therefore, it is advisable to try to find the copyright owner and ask for permission. Obviously, this is not always possible, not least because the mere fact that an image is stored on a particular server with a particular URL does not mean that the owner of that domain also owns the copyright. It’s widespread practice just to lift things off the Internet.”
How hard must we work to find the legal owner of such images in order to inquire about copyright and possible re-use? Most small-to mid-size publications do not have an assigned photo editor. Photo wrangling is often an ad hoc enterprise, and a thankless one.
The fear among editors and designers is that they will use an image—even credit it, if possible—and then learn that copyright protection was violated.
Copyright violation depends on how the image was used. If you use an image as an ornament or as a design element to make your publication look better, however, you may be in trouble. The use of images from the Web in the context of news reporting or criticism, however, will most likely fall under the fair use clause, says Debatin, who is working on a book on Internet ethics. “It is highly advisable to credit the copyright owner properly, by giving the URL, image title and owner name.”
If you cannot determine an image’s copyright owner, take a closer look at the image itself. Many commercial suppliers—such as Corbis or AP—use watermarks on their images. Sometimes you can use the “view image” function on your browser to see where the image is located. You can also try to open an image in a simple text editor and look at the source code, so to speak. “Sometimes copyright owners put their name into the image’s code,” says Debatin. “If in doubt, it is advisable to do a ‘Google Images’ to see if there are other Web sites with the same image, and whether a copyright owner can be determined.”
What do you do when the owner of an obviously copyrighted image fails to respond to repeated requests for publication approval? “Acknowledging the source of the copyrighted material does not substitute for obtaining permission,” the U.S. Copyright Office points out. The safest course they recommend “is always to get permission from the copyright owner before using copyrighted material…When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of ‘fair use’ would clearly apply to the situation.”
And how can one determine whether certain use may be considered fair? “If there is any doubt,” says The Copyright Office, “it is advisable to consult an attorney.” Ah, yes.
John Brady is visiting professional at the Scripps School of Journalism, Ohio University. He is a partner at Brady & Paul Communications, a publishing consultancy, and conducts editorial workshops for professionals. For information on his Interviewer’s Handbook: A Guerrilla Guide for Reporters and Writers, his Web site is johnbrady.info, or you can e-mail him at Bradybrady@aol.com.