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Just Because You Can Copy It Does Not Mean That You May Copy It

Written by Susan Neuberger Weller

In a number of recent cases, individual photographers have successfully sued third parties for unauthorized reproduction and use of photographs, particularly those from stock photography sources. Courts have found third party liability for willful and innocent copyright infringement for the use of individual photographs and have awarded damages to copyright holders based on such conduct. Generally, professional photographers offer their photographs for use by third parties through professional stock photography agencies that negotiate licenses for use of the photos on behalf of the photographer.

Stock photography is big business as evidenced by the Carlyle Group’s recent bid for Getty Images in a deal that could be worth close to $3.5 billion. There are many online stock photography sites on which thousands of photographs can be viewed and used for a fee.  On some sites, there are a few photographs that can be used for free.  The use of stock photographs can be much less expensive than hiring a professional photographer to take photographs for a particular purpose.

But what about sites on which there are photographs not taken by professional photographers, such as Pinterest? If these photographs were placed online by the individual who took the photograph, and there are no restrictions on the ability to print it out and/or copy and paste it elsewhere, isn't it okay to do either of those things? The answer is "no," because to do so without the express permission of the copyright owner would constitute copyright infringement. By posting a photograph, a photographer of any type does not impliedly give permission for anyone to use it. So how do you know if the photograph is protected by copyright? Just assume that any published photograph taken after 1923 is currently copyright protected.

What does "copyright protected" mean?  Copyright protects any "original works of authorship fixed in a tangible medium of expression." It is not necessary to obtain a copyright registration for the protection to exist nor is it necessary to use a © or other copyright notice for a work to be protected by copyright. Copyright protection exists from the moment a tangible work, such as text, music, drawings, photographs, and other types of works, is created. The individual who physically creates the work is considered the owner of the copyright, unless he or she creates the work as part of his or her employment responsibilities, in which case the employer automatically owns the copyright. Copyright owners enjoy certain exclusive rights with regard to their copyrighted works including the right to reproduce the work in whole or in part, to publicly display the work, and to create derivative works based upon the original copyrighted work. In order for there to be copyright infringement, the infringer must have had access to the original copyrighted work and then committed an infringing act. Thus, seeing a photograph on a website and then copying and pasting that photograph somewhere else, without obtaining the permission of the owner of the copyright in the photograph, in most instances will constitute copyright infringement.

The owners of sites like Pinterest may be protected from copyright infringement liability under the provisions of the Digital Millennium Copyright Act as long as they comply with the provisions of that law. After a somewhat rough start, Pinterest has modified some of its Terms of Use to make it clear to users what rights they are giving Pinterest by posting content to the site and what rights Pinterest has to use and display the content. Nowhere on its site or in any of its Terms of Use does Pinterest state that users of the site may copy content on the site without fear of any liability. This is also true for most other sites on which copying of content is not technologically restricted. Thus, it is important before copying any content from any site to first check the site’s terms of use. Depending on the purpose for which the content is to be used, you may have a fair use defense, but what constitutes fair use is not always obvious or easily determined.

So, just because you can copy a photograph doesn’t mean you may copy the photograph. Getting permission to use someone else’s property, including their intellectual property, is always the best course of action.

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Geri Haight is a Mintz Member and former in-house counsel who focuses on employment litigation, counseling, and compliance, as well as intellectual property and trade secret matters.
Susan Neuberger Weller manages the Trademark & Copyright Practice at Mintz. Susan assists clients with securing and protecting IP assets across the globe. She's worked with clients in a variety of industries, including pharmaceuticals, medical devices, software, electronics, and entertainment.