If you're a creative working in the digital space, it's highly likely that at some point in your career, you'll find yourself on at least one side of copyright law questions. Situation one: You regram a photo and tag the source, yet suddenly the owner is claiming copyright infringement and asking you to remove the post (or worse). Situation two: You spend hours/days/weeks working on something, only to see it pop up in other places without credit, or even credited to someone else. To find out what to do in these situations—and how to avoid them in the first place—we got Annette Stepanian, an attorney with a focus on helping creative entrepreneurs set a legal foundation for their business, to answer our copyright law questions.
Q: Is a regram on Instagram considered copyright infringement?
The short answer to a very long explanation is “yes- a regram on Instagram could be considered copyright infringement.” But you might think, “I’m sharing someone’s photo as a compliment. I’m giving them more traffic and exposing them to my audience. Surely they won’t mind.” Sorry, but the law doesn’t care if you’re being nice. Under U.S. copyright laws, a copyright is a form of protection given to the author of published or unpublished “original works of authorship” which prevent the unauthorized use of another’s work. When you regram another’s copyrighted work without permission, you’re infringing on his/her copyright.
It’s a common misconception that linking to the source is enough to protect you from claims of copyright infringement.
Q: Is a photo credit with a link to the source enough?
It’s a common misconception that linking to the source is enough to protect you from claims of copyright infringement. Giving credit and getting permission are two different things. Linking to the source is not enough because 1) the source you’re linking to may not be the one who owns the copyright and 2) linking does not mean that they have given you permission to use the photo.
Q: What do you do if you don't know the original source of a photograph?
For images, I recommend doing a reverse image search using Google Images or Tin Eye. With these online services, after you upload an image into their search bar, you’ll receive results of similar images available on the Internet. With a little investigation, you can probably locate a copyright notice on or near the image to identify the name of the copyright holder. You can also conduct a search of the Copyright Office catalogs or for a fee, have the Copyright Office conduct a search for you. Once you know who the copyright owner is, you can locate them and ask permission to use the image. Be prepared to let them know how you intend to use the image. Get their permission in writing and save it for your records.
Because copyrights are a bundle of rights that can be transferred or licensed to others for various uses, don’t assume that the photographer of the image is necessarily the copyright owner. For example, let’s say you’re writing an e-book and you want to use a specific photograph for the cover of your book. You may contact the photographer to find out that she sold her rights to the photo to someone else, who has the exclusive right to publish her photography.
If you can’t determine the copyright owner, cannot get permission, or don’t want to pay for a license to use the photograph, then it might be best to use a free image under a Creative Commons license or purchase stock photography. You may also want to limit your use to works that are in the public domain. The public domain consists of works that are not protected under copyright laws, meaning that anyone can use the work without obtaining permission from the author or their heirs.
Q: What is the potential recourse for posting an image that didn't belong to you?
If an owner of a copyrighted work learns that you are using their protected work without permission, the copyright owner has the right to take you to court and seek monetary damages as well as injunctive relief (i.e. get a court order preventing you from using the work). Whether someone will actually do so, is a different issue. However, it is always best to get permission from the copyright owner before using the work .
Q: How do you file for copyright on a blog, specifically? Do you have to file each post separately?
According to my conversations with representatives at the Copyright Office, you can register your blog as part of a compilation. That means that you don’t have to register each and every blog post separately. You can compile a series of blog posts together and register them as a group. Online content is still a rather new medium and the copyright laws haven’t caught up to reflect the world of online publishing. Before registering your blog posts, inquire about the registration requirements with the U.S. Copyright Office.
Fortunately, registering your copyright with the U.S. Copyright Office is rather simple and can be done online or with a paper application. You need to complete an application form, pay a filing fee, and submit a nonreturnable copy of the work being registered with the Copyright Office.
Note, however, that publishing a work, including a copyright notice such as (© 2015 Jane Doe) or registering a work with the Copyright Office are technically not required in order for your copyright to be valid. This is because copyright laws protect your work the moment it is created and fixed to a tangible form. Although the use of a copyright notice is no longer required, it is beneficial and easy enough to include one. A copyright notice informs others that the work is protected under copyright law and indicates the copyright owner and the year of first publication, thereby preventing an infringer from claiming that they didn’t know the work was copyrighted.
Registration is also not required, but recommended for a number of reasons. First, it creates a public record of your copyright. In the event there is ever a dispute about who owns the copyright, the registration can support your case. Second, U.S. copyrights must be registered before filing a case in court. If you register your copyright within five years of publication, the fact of registration establishes a presumption that the copyright is valid. Also if you want to claim statutory damages or you want a shot at attorney fees, registering the work prior to infringement is essential.
© 2015 Annette Stepanian
Annette Stepanian is an attorney and creative business owner who helps creative professionals and entrepreneurs lay a legal foundation for their business. To learn more, visit her website.
Disclaimer: This information is for educational and informational purposes only; it is not intended as and does not constitute legal advice and does not create an attorney-client relationship between you and the author. You should not act, or refrain from acting, on the basis of information provided here without first consulting legal counsel in your jurisdiction.