Blogger Beware: You CAN Get Sued For Using Photos You Don't Own on Your Blog
Today I need to talk about something that I've been wanting to blog about for a while but couldn't until the situation was wrapped up.
For those of you who are super observant, you may have noticed some changes on my blog over the last few months. Tumblr posts went away. Fiction Groupie disappeared. I deleted most of my Pinterest boards. The Boyfriend of the Week has changed format. And all my previous posts from the past three years -- all 700 of them -- now have new photos on them.
Image: Ginnerobot via Flickr.
Why is that? What happened?
Well, you've probably figured it out from the title, but it's because I've been involved in a case regarding a photo I used on my blog. Like most of you, I'm a casual blogger and learned my way into blogging by watching others. And one of the things I learned early on was that a post with a photo always looked nicer than one with just text. So I looked at what other people were doing for pictures.
And mostly it seemed that everyone was grabbing pics from Google Images and pasting them on their sites. Sometimes with attribution, most of the time without. And when I asked others (or looked at disclaimers on websites and Tumblrs), it seemed that everyone agreed using pics that way was okay under Fair Use standards.
Here is an example of a disclaimer I found on a bigger site (name of blog removed):
THIS BLOG claims no credit for any images posted on this site unless otherwise noted. Images on this blog are copyright to its respectful owners. If there is an image appearing on this blog that belongs to you and do not wish for it appear on this site, please E-mail with a link to said image and it will be promptly removed.
And site after site had the same kind of thing. Just look on Tumblr, that same type of disclaimer is on a ton of them. And I'm thinking -- well, that must mean it's okay because if that weren't true, sites like Tumblr and Pinterest couldn't even exist because reposting pics is the whole POINT of those sites. So off I went doing what everyone else does -- using pics from Google Images, putting a disclaimer on my site, etc.
Well on one random post, I grabbed one random picture off of Google and then a few weeks later I got contacted by the photographer who owned that photo. He sent me a takedown notice, which I responded to immediately because I felt awful that I had unknowingly used a copyrighted pic. The pic was down within minutes. But that wasn't going to cut it. He wanted compensation for the pic. A significant chunk of money that I couldn't afford. I'm not going to go into the details but know that it was a lot of stress, lawyers had to get involved, and I had to pay money that I didn't have for a use of a photo I didn't need.
It wasn't fun. But the fact of the matter is, I was in the wrong. Unknowingly. But that doesn't matter. And my guess is that many, many of you are doing the same thing I was doing without realizing it's a copyright violation. So I wanted to share my experience so that you can learn from my mistake.
Here's what I learned about Fair Use:
It doesn't matter...
- if you link back to the source and list the photographer's name
- if the picture is not full-sized
- if you did it innocently
- if your site is non-commercial and you made no money from the use of the photo
- if you didn't claim the photo was yours
- if you've added commentary in addition to having the pic in the post
- if the picture is embedded and not saved on your server
- if you have a disclaimer on your site
- if you immediately take down a pic if someone sends you a DMCA notice (you do have to take it down, but it doesn't absolve you.)
NONE OF THAT releases you from liability. You are violating copyright if you have not gotten express PERMISSION from the copyright holder OR are using pics that are public domain, creative commons, etc. (more on that below.)
I didn't know better, and I had to learn the hard way. So I want to let you all know now so that you don't have to be a cautionary tale as well.
Plus, beyond not wanting to be sued, most of you who are reading this are writers. Our livelihood depends on the rights to our work. I've already had to send my own DMCAs to sites that have pirated my books. So I definitely don't want to be someone who infringes on someone else's copyright. A photo is someone else's art and unless they tell me it's okay, I don't have the right to use it.
So what can you do?
1. If you've been using images without approval from the Internet on your blogs, know that you are probably violating copyright and could be sued for it.
Is the chance high? Probably not. Is it possible? I'm proof that it is. So you may want to consider going through your posts and delete pics that aren't yours.
2. Search for photos that are approved for use.
- Creative Commons-licensed pics -- You can search for photos that are free to use (with some restrictions) through Creative Commons. Usually this means you have to attribute the photo to the owner and link back to their site. (All of my posts now have pics that are under Creative Commons license. And there are actually really great photos available.) Meghan Ward did a fantastic post on the breakdown of Creative Commons licenses plus listed some other photo sources.)
- Wikimedia Commons offers free media files anyone can use. (Creative Commons license rules still apply if they attached to an image; however, many images on Wikimedia Commons are in the public domain and therefore copyright-free, meaning anyone can use and modify them for any purpose. You need to look at the description for each image and abide by those rules.
- Buy a subscription to a stock photo site -- This can be pricey up front but then you have access all year. There are also sites that you can pay per pic. (Here is one example of a subscription service. Thanks to Janice Hardy for that suggestion.)
- Use photos that are in the public domain; as above, Wikimedia Commons is a great place to start. Here's another list put together by the editors at Wikipedia.
3. Take your own photos and share the love.
Almost all of us have camera phones these days. Instead of just taking photos of our family, think of images you could use on posts. See a stop sign. Snap a picture and save it. Whatever. And if you want to give back and not just take, open up a Flickr account (here's mine) and list your own images as creative commons so that you can share the love. (You can set it up to where whatever pic you load from you camera is under that license.)
4. Use sites like Pinterest and Tumblr with caution.
I have read way too many terms of service over the last two months. And I'm not a lawyer, so the legalspeak can be confusing, and I am NOT giving legal advice. BUT both Pinterest and Tumblr (and most other social sites) say that if you load something into their site (i.e. Pin It or Tumble it) YOU are claiming that YOU have a legal right to that picture. And if the owner of that photo comes after the company, you will be the responsible party. Yes, if that's enforced, it would seem to mean that 99% of people on Pinterest are doing something illegal. Will that ever come up? Maybe. Maybe not. But I'm leaning on the paranoid side now. I don't want to be the test case. And I don't want to pin something the owner of the photo wouldn't want pinned.
So pin your own photos, pin things from sites that have a Pin It button (but use the Pin It button with caution too. If that blogger is using pics they don't own the copyright for, you still don't have the right to pin without permission of the copyright owner.) I pin book covers and movie posters because I figure that it's advertisement for said movies or books. But other stuff? All those pretty mancandy photos? I'm going to look but not touch. This would also apply sharing pics on Facebook. Same rules apply.
And it should go without saying at this point: NEVER use Pinterest or Tumblr or Facebook or Twitter as a source for images to use on your own blog, unless you've asked for permission.
5. Assume that something is copyrighted until proven otherwise.
That's your safest bet. If you're not 100% sure it's okay to use, don't. This includes things like celebrity photos. Someone owns those. There are enough free pics out there that you don't need to risk violating someone's copyright.
6. Spread the word to your fellow bloggers.
It was KILLING me not to be able to go tell everyone about all of this because I didn't want anyone else to get into this kind of mess. So if you know someone who is using photos in the wrong way, let them know. I wish someone had told me.
So I know many of you are probably thinking -- she's being paranoid or that the likelihood of this ever happening to you is slim. Well, maybe. But it happened to me. And now that I know better, I'm going to do better (from the Maya Angelou quote Oprah always used.) And yes, it does kill me a little bit that I can't go on posting boyfriends of the week and mancandy, but instead I'll just post links to it so you can see it elsewhere. :)
So lesson learned: protect yourself and respect the rights of other artists.
*This post is not intended as legal advice. God knows I have no background in law. This is just my experience and what I learned working these past few weeks with people who are experts at copyright.
So what are your thoughts? Anyone surprised by this? Anyone have any other recommendations on where to find approved photos?
Roni Loren - Romance Author
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