Jason L. Hardin
ext. 8181 (on campus)
Office hours: 2:00pm - 3:00pm, Thursdays; and by appointment
What are your options?
Most creators will at some point want to incorporate others’ images into their own work. Traditional US copyright law (17 U.S.C.) and all its attendant provisions can be difficult to navigate and understand, and even the law’s robust “Fair Use” provisions can leave a lot of uncomfortable ambiguity. In fact, you can’t ultimately KNOW if your usage of a copyrighted work is fair or not until after you’re sued for infringement and a verdict is reached! This process can take years and cost hundreds of thousands of dollars. There are abundant real-life examples of this dilemma.
So here is a brief outline of the approaches you can take, along with their advantages and disadvantages, when you want to incorporate either whole or partial elements of others’ copyrighted visual images into your own works. Note that in ALL cases, properly attributing the original creator or rightsholder is absolutely necessary.
OPTION 1: Use whatever image(s) you want and just claim fair use.
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Advantages |
Disadvantages / Precautions to take |
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- Get to use pretty much any image you find, anywhere. Maximally broadens your creative options. Google Images will bring you back millions of relevant hits to your search query. |
- Disregards the original creator’s rights.
- No up-front way to know if your use is really fair or not! Fair use is not universally applicable and automatic, even in non-profit applications like education. - Opens you up to charges of infringement, especially if your usage of the work in question is detected online by image bots. Fighting these charges can be time-consuming, frustrating, and very costly, and if you’re doing work-for-hire, your employer may not choose to defend you. |
OPTION 2: Pay royalties to use professional stock images.
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Advantages |
Disadvantages / Precautions to take |
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- Commercial stock photo companies like iStock (Getty Images), Shutterstock, Adobe Stock, Dreamstime, and 123RF offer many millions of high-quality, high-resolution photos, vectors, and illustrations that are applicable to a broad variety of uses, including journalism, social media, websites, and even for-profit activities.
- Safe. Your paid license guarantees freedom from worry about lawsuits. |
- Expensive. Usually a paid monthly subscription is required, and even then, licensing a single image can cost anywhere from $10.00 – $20.00, or even up to hundreds of dollars, based on your intended usage.
- Reading the fine print is still a must. Just because you paid for a license through a reputable stock photo company, doesn’t grant you carte blanche to use the product in any way you want |
OPTION 3: Use stock photos provided by free image sources.
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Advantages |
Disadvantages / Precautions to take |
| - Websites that contain some free or Public Domain images, like Pixabay, pxhere, Unsplash, VistaCreate, and Pexels provide millions of free, high-res, open-license images. |
- You have to be very careful when using images from these sites! Just because the images are explicitly posted as carrying a public domain or Creative Commons license, doesn’t mean that the uploader actually had the authority to do so – they might have “misappropriated” the image from elsewhere, so in some cases the original image could have carried a traditional “all rights reserved” license. If you choose to use a photo from Pixabay, for example, it’s helpful to run the file through a reverse search on Google Images to try to identify an original source. |
OPTION 4: Use public domain or Creative Commons-licensed works.
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Advantages |
Disadvantages / Precautions to take |
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- The Creative Commons offers legally established, broadly permissive licenses that encourage free creative exchange. Search engines like CC’s own Openverse project, Flickr’s Creative Commons interface, and the Wikimedia Commons can help you find content that carries these licenses.- Most creative works produced by a single author or artist prior to 1923 are in the public domain and therefore free to use to any degree and in any context. Many museums, archives, academic content providers, and governments have digitized their holdings and offer online search engines and free downloads of public domain works. Consider these from the New York Metropolitan Museum of Art, the National Gallery of Art, Old Book Illustrations, The British Museum, ARTSTOR, rawpixel, the Smithsonian Institution, and the Art Institute of Chicago. |
- These search engines can often yield wildly irrelevant results, even with carefully crafted search strings. Since users of image-hosting sites are free to tag their content with any terms they want and to post detailed text descriptions of the image, a short search query can bring back many unwanted hits.
- As with the free sites listed in Option 3 above, it’s always a good idea to investigate an image’s original source to determine its original license status. Be aware also that an image’s CC license will not always be compatible with the license you wish to put on the remix you’re creating. (For example, you cannot place a “No Derivative” CC license on your adaptation of a “Share Alike” CC licensed work.) - Quality of search results can be hit-or-miss. The Creative Commons is a low-cost, highly democratized tool, so the barrier to using it is also very low. A search query can return dozens of poorly executed drawings or hundreds of badly framed family photos. Contrast this with the professional-grade resources from a commercial stock photo site. |
OPTION 5: Embed the images into your work using HTML code (ie, a link).
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Advantages |
Disadvantages / Precautions to take |
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- Embedding an image into your website or other digital content via URL isn’t currently considered overtly infringement because you’re redirecting your audience to a third-party server, rather than hosting the image, yourself. (But see the Disadvantages column to the right for more info on this.)
- Convenient. Copy-pasting a link is quick and easy. |
- The legal status of embedding content is currently unclear (as of April 2022). Prior to 2018 many courts held that embedding by a secondary user of a work should not be considered copyright infringement because no local copy of the file was being hosted; this concept was called the “server test”. This precedent has come under increasing scrutiny however and the US District Court for the Southern District of New York has held that embedding still constitutes a “display” of a copyrighted work, and thus still falls under the exclusive rights of the original creator. In other words, tread carefully. |
Two final considerations:
1. Whatever option you choose, think carefully about your intended purpose when using photographs of real human beings. This document has pertained to copyright issues, but a further legal and ethical question arises when using photos of living persons, regardless of the source of those photos, in a commercial context or when associated with a concept that the human subject might object to. While it’s true that in most jurisdictions a person photographed in a public space is not considered to have any right to privacy (and thus for example, individuals photographed in a city park have no legal control over a straightforward reproduction of their likeness), they might not want to appear in an advertisement, a for-profit publication, or in promotional content for organizations or activities that they want no association with. Models who appear in commercially produced and licensed stock photos almost always sign a document called a model release which expresses their consent to commercial or otherwise unspecified applications, but it’s always a good idea to verify this with the stock photo company.
2. Be aware of trademarks, and how the inclusion of these in an image can alter your ability to freely use that image. For example, just because a Flickr user’s photograph of a street in New York carries a Creative Commons license, if that image contains the Starbucks logo, you might not be permitted to incorporate that specific element of the picture into your own work. Generally speaking, a third-party trademark can appear in a creator’s visual work only in “editorial” contexts, which is to say that there must be some valid journalistic, academic, or critical reason for its appearance. For example, using that photo containing the Starbucks logo on a personal blog post about your New York vacation would likely not be allowed. However, its usage would be more justifiable in a news report discussing worker pay in Starbucks franchises .
This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
Author’s intellectual property per Trinity University Faculty Handbook, 2021- 2022: (4A) IV.B.2.
Viewpoints expressed are not necessarily those of Trinity University.