The devil is in the details, right? It is when it comes to image copyright laws. And that’s why in part two (make sure you read part one which goes over a bunch of the basics of copyrighted images) we talk about those details.
Here we continue our discussion with IP attorney Shannon Montgomery and talk about GIFs, memes, and the use of free image sites.
So rev up your copyrighted images engines and let’s get started.
Don’t Rain on My GIF and Meme Parade
How about GIFS and memes? What are the image copyright laws around those?
I asked this question with much trepidation because I love me some GIF action.
Shannon only moderately rains on my parade.
Legally speaking this can be problematic. Practically speaking you could get away with using commercial images in your meme or gif depending on how you’re using it and of course how popular it becomes.
There have been a few high profile copyright suits concerning memes and popular meme accounts on Instagram being taken to task for taking photos and other content from people without the proper permission. Some of those cases have settled, some of them are still being figured out. But as with anything, I always tell my clients just be cautious.
If you are using a popular meme, or gif, or creating one with the use of other content/images for marketing or other purposes meant to generate income, get the clearance you need to use those things.
If you’re reposting something or retweeting something for non-commercial purposes are you going to get slapped with a cease and desist? Most likely not. Unfortunately, it is all a grey area.
Commercial use isn’t the only thing to consider because a copyright holder might be concerned with the dilution of their work, or the shrinking of the marketplace for their work. Those things can happen without anyone directly profiting off of the unlicensed use of a work.
I really want to insert a relevant GIF here, but I feel like that’s just asking for trouble. Alas…..
These Are MY LEGOS…Or Are They Not?
Ok, so a simple and safe solution to stay compliant with image copyright laws is to only use the images you take. Right?
Things are still a bit tricky down this road. Don’t rest easy friend.
We asked Shannon this: If we own a LEGO set and take photos with them for blog posts, is that legal? Same thing for other types of branded stuff?
This one is tricky!
There is more at play here than copyright issues. You have to think about trademark infringement, trademark dilution, and even defamation. So even though you bought the LEGO set and it’s yours, if you take a photo of it and use it in some commercial manner and that commercial manner annoys LEGO, they may have a cause of action against you.
It’s going to depend on how the brand’s logos/marks are being used. So in this example, what is the post about?
- How does the branded image relate to what you’re using it for?
- Is there going to be even a remote chance that a consumer thinks your post is somehow connected to Lego or the brand in the image?
- Are you speaking negatively about the brand in a way that gives rise to a defamation claim?
This Doesn’t Matter for My Personal Social Sites, Right?
Not necessarily. Shannon continues:
Even out of a commercial context, brands could potentially come after individuals that post branded content on their social pages.
Often times brands want this exposure and it isn’t going to be an issue to use a branded image in a blog post or on your IG feed. But, you have to be very careful about how you’re using it and whether or not that use is going to garner a ton of attention and or make you a lot of money.
If either of those things happens it’s much more likely a brand would come after you for the use of their brand’s images without permission.
So, Should I Stick to Free Image Sites?
Well, maybe free image sites are the way to go? You don’t need to worry about image copyright laws with those, right?
We asked! Shannon answered!
Yes! A lot of these places are great resources for free images but they aren’t copyright free.
They still have a rightful owner and that owner has agreed to license the images for free to these sites. But, each site varies on what you can and can’t use the images for.
It is so, so, so important to read the license for the use of the images before you swipe an image from one of them and use it as your clothing lines logo (I’ve dealt with this on a personal level)!
Read the license, and be sure that your intended use is allowed. Even if the image is “free” it doesn’t mean it is copyright free and free from potential rules for use.
Confused Much? Image Copyright Laws and Communication
This all can seem overwhelming. Can’t there just be a black and white line on what is legal vs. what isn’t when it comes to copyrighted images?
According to Shannon: No. (Sigh….)
Not in my opinion. And I don’t think many IP attorneys would disagree.
The law is applied in the grey area. Even the process of gaining trademark or copyright registration is different from case to case. Not even non-commercial use of an image is a safe bet.
Follow the Law. Retain Your Sanity.
I’m picturing much paralysis analysis as a result of these posts every time you all try to choose an image to use.
So here is my takeaway around copyrighted images:
- Err on the side of caution: Ask first if permission requirements are not clearly indicated.
- Over credit: Go above and beyond the required credit.
- Use common sense and critical thinking skills: When in doubt double check with the source and then over credit.
- Be ethical: And if you don’t know how to be ethical, imagine the image creator is your son or daughter. He or she drew the image with bark dust while fighting off barracudas while dedicating his or her time to help a sick, homeless woman and her puppy. What type of credit would you want to make sure he or she is given?