The Court of Consumer-Generated Content: Which Images Can We Use?

I engaged recently in an interesting discussion about the legal and ethical responsibilities of bloggers and authors of other kinds of social media content. This discussion, which focused on the appropriate use of images found on the World Wide Web, began with questions from graduate students in my COM610 Social Media Strategies and Tactics course, part of the M.A. in Integrated Marketing Communication in the School of Communication and the Arts at Marist College.

First, I tip my hat to the professionalism of our Marist graduate students. Without prompting from the faculty member, students in this course showed excellent insights and a strong sense of ethical and legal responsibility by raising this issue.

Second, this discussion is important and relevant to millions of people who blog, tweet pictures, post images on Facebook, design PowerPoint presentations, or otherwise present or represent copies of images and other intellectual knowledge that others have created.

I received this question from some of my graduate students, who have been assigned to blog this semester as part of a social media management assignment:

“When we are posting to our blog, many of us are using photos and even though they are being cited we technically do not have permission to use these photos. Some of us are afraid of breaking copyright laws but we also do not want to get penalized in class for not using photos. Can you shed some light on this for us?” (Personal Communication, February 27, 2013).

This is a great question. In fact, many of us violate copyright laws – knowingly or unknowingly – when we copy an image from the World Wide Web and share it. With a few simple mouse clicks we can “Copy image URL” (universal resource locator) or “Save image as” and post the link or image to our blog or other social media platform. Even though this simple process is easy, in most cases this practice is not legal. Consider the following facts related to U.S. Copyright Law and other federal regulations.

The TEACH Act (Technology, Education, and Artistic Harmonization) of 2002 allows teachers and students some latitude for displaying and discussing intellectual knowledge inside a classroom (e.g., showing a work of art like a painting, movie, or piece of literature). However, artistic works like photographs or images usually enjoy special protection under U.S. Copyright Law outside the classroom.

Yes, in an online course, the distinction between inside and outside a classroom can get fuzzy. However, inside a virtual classroom usually refers to access that is limited to students, faculty, and technicians that are enrolled in a course or involved with administration of the course.

But there are limits to what teachers and students can use; and don’t try to play the “Fair Use” trump card to share too much copyrighted material in a classroom. There is no rule to guide how much material you can use before you violate the law. According to the U.S. Copyright Office:

“Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See FL 102, Fair Use, and Circular 21, Reproductions of Copyrighted Works by Educators and Librarians.” (U.S. Copyright Office, para. 4)

We often think nothing of sharing, retweeting, tagging, or repinning, images and information that we receive from friends on social media sites. However, consider what the U.S. Copyright Office has to say about using files obtained from peer-to-peer networks:

“Since the files distributed over peer-to-peer networks are primarily copyrighted works, there is a risk of liability for downloading material from these networks. To avoid these risks, there are currently many "authorized" services on the Internet that allow consumers to purchase copyrighted works online, whether music, ebooks, or motion pictures. By purchasing works through authorized services, consumers can avoid the risks of infringement liability and can limit their exposure to other potential risks, e.g., viruses, unexpected material, or spyware.” (U.S. Copyright Office, para. 12) 

Now, we might normally think of music or movies when we consider files from peer-to-peer networks. However, think of a “pin” from Pinterest that we receive from a friend or repin from a Pinterest board of someone we follow. It’s a file. The file is from a network of images shared by peers; and it is probably protected. 

You don’t agree? Here’s what attorney Jonathan Pink had to say about this issue during an interview on National Public Radio:

“Pinterest is no different than any other user-generated site. Perhaps it's more image-oriented than most. But for the most part, it's not terribly different. And what the law says - the Copyright Act says, with respect to the using of images that belong to other people, is pretty basic. And that is that one may not reproduce or prepare a derivative work based on or distribute copies of photographs that one doesn't own, absent those works falling into certain exceptions, fair use being one of them, public domain being another. Or unless the - in this case, Pinterest pinner - has obtained permission from the copyright owner of those images.” (National Public Radio, 2012, para. 6)

It seems Pinterest agrees with Mr. Pink, too. Read the terms of agreement you signed for when establishing your Pinterest account. First, you have agreed to be “solely responsible for … the User Content you post to Pinterest” (Pinterest, 2. Your Content, para 1).

Second, “Pinterest has adopted and implemented the Pinterest Copyright Policy in accordance with the Digital Millennium Copyright Act. For more information, please read our Copyright Policy” (Pinterest, 3.  Copyright Policy, para 1).

Third, “TO THE MAXIMUM EXTENT PERMITTED BY LAW, PINTEREST SHALL NOT BE LIABLE FOR … (C) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT). IN NO EVENT SHALL PINTEREST'S AGGREGATE LIABILITY EXCEED ONE HUNDRED U.S. DOLLARS (U.S. $100.00)” (Pinterest, 9.  Limitation of Liability, para 1).

It doesn’t take a lawyer to understand what Pinterest is saying here. You pin and repin images at your own risk. If someone sues you for copyright infringement, don’t expect to “pin” responsibility on Pinterest or have it pay the damages.

Now, we could go on and on with this discussion and extend these examples to Facebook, Twitter, Flickr, blogs, etc. But in the interest of time, let’s look at what we can do on a blog or Pinterest in terms of posting or sharing images.

First, know your copyright law … and trademark law. Just because a piece of material isn’t labeled with the once ubiquitous copyright symbol (©) or trademark symbol (TM) (R) doesn’t mean it is not copyrighted. The requirement to attach © to copyrighted material was dropped by the United States when it joined the Berne Convention in 1988. Now, anything we author is considered to enjoy copyright protection as soon as we create it – with our without the © symbol.

Second, don’t assume you are authorized to use a trademarked image, just because you are working on an academic assignment or you belong to an organization that created the image. Take for example Marist College’s beloved “Shooter the Fox” mascot. Just because students and faculty are part of the “Red Fox Nation” of sports fans doesn’t entitle us to use the Fox logo without permission. Here is the official policy of the Marist College Athletics Department:

“Logo marks … were designed exclusively for the Marist Athletics Department and for those entities that have been given permission to use them…. The Marist Athletics Department does not allow these marks to be altered in any way and all logo applications must be supplied to the Marist College Associate Athletics Director for authorization and approval…. All logo marks are the property of Marist College and may be used with written permission only.” (Marist College Athletics Department, Marist Athletics Style Guide, n.d., paras. 3-4).

The same laws apply to the trademarked images and logos of major companies, with or without the trademark symbol and whether or not you are a member of that organization. Do not use these logos or symbols in your work without written permission.

Third, don’t stop using images in your social media products. Learn how to request permission from copyright owners to use an image. Refer to the U.S. Copyright Office’s Web page for information about finding and contacting copyright holders.

Or, find sources of free images that you can use legally.  You can start with Microsoft’s extensive online gallery of free clip art, photographs, and animations. Design Shack (2010) also offered the following ideas:

“Check out Stock XCHNG, a free stock photography website with tons of content (good and bad). Also, did you know you can run a Flickr Search using only creative commons licensed content? These photos are free to use and many only require attribution, which can come in the form of a simple slide thrown in at the end of your presentation with a link to the photo sources.” (para. 11)

See the Creative Commons Web site for information about the creative commons licensing system, referred to in the preceding paragraph, which allows for a range of protections and authorized use of content. 

To bring this post to a close and leave this topic open to further discussion, let me end with an observation. The laws governing how we protect and share content on the World Wide Web are subject to much debate and legal wrangling. And the ease with which new technologies enable us to copy, paste, and share images and other information from the Web has blurred the lines between what is legal and illegal.

Still, we need to sharpen our focus on these lines. And we need to err on the conservative side of declaring a line. Just think of the many lawsuits that rained down on college students a decade ago over claims by the Recording Industry Association of America (RIAA) that downloading music from peer-to-peer file sharing sites like Napster was illegal. I recall many students saying, “We’re safe. They can’t sue all of us.”

Well, RIAA didn’t have to sue everyone. A small sample of students did the trick. According to Internetlaw.com, the RIAA filed civil suits against four students at Princeton University, Michigan Technological University, and Rensselaer Polytechnic Institute.

"RIAA alleged that students made between 27,000 and a million songs available through their universities’ networks. The music industry also contended that statistics indicated that nearly 50 percent of the available computer resources at some universities were being used for unauthorized copying and distribution of copyrighted material. These cases were settled; defendants paid damages reported to range from $12,500 to $17,000." (Internetlaw.com, para. 2)

But playing it safe and staying legal doesn’t mean we cannot continue to communicate on social media through words, images, and sounds that are not of our own making. You should continue to create and innovate. Just stop before you communicate, learn or review the rules, and play by them.

Note: All images in this blog post came from Microsoft Office's gallery of free clip art, photos, and animations.