Which images can you use for free?
About 300 million pictures are posted, tweeted, shared via social media every day – and that’s not even taking into account the images that end up on webshops, blogs, news websites, and so on. Most of these end up online without copyright notice. And while many people seem to think they can just use whatever image they find on platforms like Pinterest or Google Images, that’s usually not the case.
Copyright is automatically granted the moment a creator produces an image. They don’t need to register or mention their copyright. The fact that the photo can be viewed online doesn’t change anything about that. In other words, a photo you found online isn’t necessarily rights-free, even if it doesn’t have a copyright symbol or a credit to the photographer. We recommend not using it unless you have explicit permission from the photographer.
But how do you figure out which works are available to use for free?
In these three cases, you’re in the clear:
- photos from the public domain
- creative commons licenses
- legal exemptions
Interested in how this all works? Then read on, because we’ll be taking a good look at the basics of copyright-free images. You should be aware, however, that a picture may not be subject to copyright protection but still be protected under another intellectual property law, or that its use may fall under competition law.
Public domain means a creative work is not (or no longer) protected by copyright. These types of works can be freely used, reproduced and performed, without the need to ask for permission or pay for licenses. There are three ways an image can end up in the public domain:
1. The copyright expired
Copyright in photos expires after 50 or 70 years as of January 1 following the death of the author. Whether it is 50 or 70 years depends on the jurisdiction you are in. Most countries, including the US and the members of the European Union, apply 70 years, but other countries, such as Canada and Japan, apply 50 years. A few countries also use their own deviating systems. Keep in mind that the length of the period has been adjusted several times over the years, leading to some exceptions, so definitely do your research before using an image.
The photo doesn’t qualify for copyright protection
Copyright only applies to original works, in the sense that they are an intellectual creation of the author. Even though the requirements for this are low, some photos simply aren’t original enough for copyright protection, and can be used freely. This only happens very rarely though, so it’s safer to assume that whatever image you may want to use is copyrighted.
Copyright law doesn’t apply to works published by the United States Government. This also counts for the governments of several other countries. This means the works are always in the public domain in their respective countries.
Good to know: you can take the works out of the public domain again by altering them yourself; for example, you own the copyright to your own translation of a work in the public domain.
When a photographer releases their photo under a Creative Commons license, they allow you to use their photo free of charge. However, this doesn’t mean that the photo is entirely free of rights or obligations. Contrary to the author of a public domain photo, the author of a Creative Commons photo has in no way whatsoever given up the rights on their work. This means that the author still has the right to impose conditions on the use of their work, like whether you need to credit the author, whether you’re allowed to alter the work, and whether the work can be used for commercial purposes. So pay close attention to the conditions that come with the license. You can find out which CC licenses there are here.
Sometimes it’s not possible to respect the conditions. For example, if you’re publishing a commercial tabloid and want to use a photo that comes with a non-commercial CC license. That’s tough luck for you, because there have been several rulings about this, and they all confirm that commercial publications shouldn’t use non-commercial CC images. Therefore, if you can’t follow the conditions that come with a CC license, you should either look for another image to use, or contact the author and ask for their permission. Any use without the author’s explicit permission should be avoided, because it constitutes copyright infringement.
You should also be careful and check whether the person who posted the image with a CC license really has the rights to it. If this is not the case and the person who posted the image made a mistake, you are committing a copyright infringement.
Copyright is the exclusive right of the author to use, adapt and distribute their work. Only the author is entitled to use their work and to grant others permission to use the work. Without the author’s permission, you are not entitled to use the work. There are some exceptions to this rule though. They depend on where you are located and will be discussed in more detail in another post, but here is a list of the most important international exemptions already.
EU member states
The European Union has established a long list of exemptions through a directive (2001/29/EC) which the member states have adapted into their national law.
However, these exemptions should be interpreted narrowly and generally refer to critique, citation, research and news reporting. Using photos without permission from the copyright owner will be legal if it falls under one of these exemptions.
How this works and what we mean with “narrow interpretation” will be explained further in a later post.
Fair Dealing (United Kingdom)
In the UK, the fair dealing doctrine allows you to use a work without permission of the original author for the following purposes: study and private research (both must be non-commercial), critique, review, and news reporting. Important to note here is that photos can only be used for news reporting if they are an integral part of the reporting. In other words, the photo has to support the text and be a part of it. Copying and publishing photos with little or no context is not considered fair dealing.
The incidental inclusion of a copyrighted work in an artistic work, sound recording, film, broadcast or cable program doesn’t infringe on copyright either. As the scope of the fair dealing doctrine is much more limited than the American fair use doctrine, the use of photos without permission from the author is much less likely to be considered fair dealing.
Fair Use (United States)
Fair use is the right to use works, such as photographs, without the copyright owner’s permission. To determine whether something would qualify as fair use, a judge would look at the following four criteria:
- The purpose and character of the use: educational or educational purposes are more likely to be considered fair use than commercial ones.
- The nature of the copyrighted work: a judge is more likely to find fair use when the original work has already been published. The original author has the right to decide when their work is first shown to the public.
- The amount of the copyrighted work shown: fair use is more likely when only a small amount or insubstantial portion of the work is used, e.g. if the work is hanging on a wall in the background of a documentary.
- The effect on the (potential) market for or value of the work used: if your use of the work is in direct competition with that of the original author, it’s unlikely to be considered fair use.