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Image trouble

We look into the legal pitfalls of using images, and explain why users need to worry about more than just copyright law16 Jul 2009


A text transcription follows.

This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.

The following is the text spoken by OUT-LAW journalist Matthew Magee.


Hello and welcome to OUT-LAW Radio, where we hope to keep you up to date with the latest news and the most fascinating features from the world of technology law.

My name is Matthew Magee, and this week we get image obsessed: whose pictures can you use and whose will land you in court? And how do you tell the difference?

But first, here are some of the top stories from OUT-LAW.COM, where you can read breaking technology law news throughout the week.

Fake web reviews punished with $300,000 fine

and

Young people move from P2P to streaming and Bluetooth for music sharing

A company has agreed to stop posting fake positive reviews on the internet and to pay $300,000 in penalties and costs. New York Attorney General Andrew Cuomo said that the posts by Lifestyle Lifts constituted breaches of Consumer Protection Law, false advertising and deceptive commercial practices. It is thought to be the first legal penalty for fake reviews or 'astroturfing', so-named because the practice fabricates grass roots support.

Cuomo said: "This company’s attempt to generate business by duping consumers was cynical, manipulative, and illegal.” Lifestyle Lifts sold a cosmetic surgery process marketed as facial firming. Customer reviews though were scathing, and the firm had also tried to stop review sites carrying testimonies of scarred and angry customers using trade mark law in a case that it eventually settled.

Illegal file-sharing activity amongst young people has dropped in the last two years according to a survey conducted by music industry consultancy Music Alley. It said that young people are finding alternative ways to find and share music.

The research said that young users are increasingly switching file-sharing activity to legal streaming services.

But the report also found that young users are still copying music and breaking copyright laws, they are just not necessarily doing it via P2P networks.

Music Alley’s research said that more fans are regularly sharing burned CDs and Bluetoothing tracks to each other than file-sharing tracks.

Those were some of the top stories from this week's OUT-LAW News.


Sometimes the most important thing to know about a picture is not whether it matches your presentation's meticulously designed colour scheme, or what its gentle artistic subtexts might be, but who owns it.

Just ask Derrick Coetzee. The US resident is being threatened this week with legal action by the National Portrait Gallery. He downloaded over 3,000 high resolution photographs of pictures in the gallery and placed them in a repository of free-to-use images in user-generated encyclopaedia Wikipedia.

Many of the paintings the photos depict are so old that they are long out of copyright. The trouble is that UK and US law treat pictures of pictures differently. In the US photos of paintings are not considered to be creative enough to gain copyright protection, but the photographs are protected by UK copyright law.

The gallery has said that it doesn't mind low-resolution images being used but wants to retain the earning potential of the high resolution images.

The legal row rumbles on, but it should act as a gentle reminder to us all that in an age when more media is more available to more people for more uses than ever before, we need to remember that just because it is available to us doesn't mean we should use it.

On websites, in documents and in presentations people are still looking online and having a fly swipe of pictures that aren't theirs to illustrate a point.

They almost certainly know that they shouldn't, and figure they won't get caught. But by using other people's copyrighted pictures, they are putting their and their company's reputations on the line.

Kim Walker, an Intellectual Property lawyer with Pinsent Masons, the law firm behind OUT-LAW, ran us through some of the basics of what pictures you can use and when.

Kim Walker: Well technically they can use pictures that are out of copyright but it is very, very difficult to find pictures that are out of copyright.  By out of copyright I mean that the copyright has expired and very, very few, because copyright lasted such a long time actually.  Very, very few photographs are out of copyright, so you can virtually ignore that as a category.  The obvious way of using a photograph is with permission and you can either get permission specifically or you can go to a source where photographs are available with licenses attached and actually there are many, many sources these days with where you can get access to stocks of photographs with licenses attached. 

It might seem basic and simple, but the exhortation to use only pictures you have permission to use is one it pays to heed.

But how? How do you know if you can use a picture or not? Enter, as usual, Google.

Last week it launched a tweak to its image search service, so now you can search pictures according to their permissions. If you want a picture to use in your family newsletter? Have them ranked for non-commercial use. Want to use it in a presentation to another company? You can search only for images available for commercial use.

Walker welcomed the move.

Kim Walker: I am sure it will help people avoid making unfortunate mistakes in terms of using images from Google image search which, because they can get it through a very simple or get access to them through a very simple search via Google they sort of assume that that gives them the free right to use which is generally not correct and obviously this can come back to bite them in future so I think the Google search feature, the new feature will be very helpful.

One important factor to bear in mind, though, is that you only have somebody’s word in this service that an image tagged for free commercial use is in fact available to you. Do remember that the poster of the image may not be the copyright owner at all, and do what other checks you can.

So where do all these Google-searched, license-ranked images come from? As people increasingly post their multimedia creations online they are becoming more and more open to letting other people use them.

The one thing that is helping that process more than anything is the existence of creative commons licenses. These are sets of permissions that give you control of how your stuff is used. Walker explains.

Kim Walker: The most common is, I guess, a license that says you can use my photograph provided you give me, the photographer, a credit and that is very common and tied to that that there are various other versions of that kind of license, nonetheless you can use my photograph provided you give me a credit and you don’t use it for commercial purposes or you can use my photograph provided you give me a credit and you can incorporate it in your work provided you don’t change and alter my photograph or if you pass it on you only pass it on the same terms that I am giving it to you on, in other words non commercial use or, you know, ultimately you can do what you like with my photograph provided you give me a credit that I, you know, that I was the original source of the photograph.

Be careful, though because copyright is not the whole story. As Coetzee found out, you have to consider not only the photograph but what is depicted as well. Walker says that even if you have a license for the image, you might not have one for what is pictured in it.

Kim Walker: The content of the photograph obviously has a bearing on whether you can use it if it includes, you know, a trade mark in the background, query are you infringing somebody’s trade mark rights if you publish the photograph or use it in a commercial way and likewise if the photograph contains an image of a living person, are you sure that you have got that person’s permission in accordance with the Data Protection Act and the, you know, if you are using it for advertising in accordance with the capped codes are you sure you’ve got their permission to include their image in your commercial use.

The other mistake users make that is increasingly a fallacy is that nobody will ever notice, says Walker.

Kim Walker: It is not an argument anymore, it is not an argument to y our boss anymore to say that I want to use this image and will never caught because, you know, it is out there on the web and they will never find us, in fact they will.  We know that the photographic image the big agencies use very, very sophisticated software now that to track it and to track users and to tie that usage back to the license or lack of license.

The penalties are not severe – a court will usually order you to pay whatever it would have cost to license an image in the first place, which can range from a few pounds to thousands of pounds.

Walker said that cases very rarely get to court, though.

Kim Walker: I don’t think very many actually get to court because as you can, from what I have said, you know, you don’t actually have to pay a huge amount to get the right to use most images so it is really not worth anyone's while going all the way to court so what normally happens obviously is that you receive a letter from the copyright, from the photographer’s lawyers or the photographic agency’s lawyers and you realise reluctantly that you have been caught bang to rights or whatever and you make the payment that they demand, I mean that is very often what happens.

So next time you are up against a deadline and looking for a snappy image with which to close your presentation, just remember Derrick Coetzee and the maze of rights and issues that can be at stake every time you use a picture.


That's all we have time for this week, thanks for listening. Why not get in touch with OUT-LAW Radio? Do you know of a technology law story? We'd love to hear from you on radio@out-law.com. Make sure you tune in next week but for now, goodbye.