We all like to use great photography on our websites. Photographs add impact, draw visitors and increase the overall quality of the site.

In other words, photographs add value.

And that's why photographers like to get paid for their work. Alas, as we all know, image theft is rampant on the web. It's seen, by the more clueless members of the web community, as a harmless activity. They fail to understand that they are taking money directly from the pockets of photographers. Copyright is perceived as an oppressive tool of huge, venal corporations: yet most image theft actually impacts hard-working, underpaid, self-employed freelances.

The problem is that several myths have taken root, leading people to think that they can use whatever images they find without compensating the rights holder. Add some laziness into the mix and you have an environment in which image theft is endemic.

But it's not without its risks, as one UK firm has recently discovered. Its unauthorised use of a postage stamp-size image ended up costing the firm something in the region of £26,000, mostly in legal fees.

So let's deal with a few myths.

If it's on the web, it's public domain

Flat wrong. Major news agencies and photo libraries have images on the web. Do you really think they're public domain? Finding an image on the web is no different to finding it in a book or magazine. The web is just another publication medium. The public availability (and ease of copying) of the image does not make it freely exploitable. Publication on the web has no effect whatsoever on an image's copyright status.

My use of the image falls under 'fair use' provisions

This is almost certainly untrue. This excuse is frequently trotted out by people who have dangerously little knowledge of copyright laws. They've heard of 'fair use' and assume - for whatever specious reason - that it applies to them. (Often the excuse is that their site is 'non-commercial' - see below.) Fair use provisions were included in copyright laws for very specific applications. You need to be very, very sure that your use of the image falls within these extremely narrow provisions. In the vast majority of cases, it won't.

If it's on the web, it's Creative Commons

Nope, sorry, wrong again. Whether an image is made available under a Creative Commons licence is a decision for the photographer, not you. Unless the image carries information specifically identifying it as being available under CC provisions, you have to assume it's not. Most images produced by professional photographs are not Creative Commons, because that hippy-dippy licensing scheme makes no commercial sense and is really just for amateurs and dillettantes.

I'm only using it small

That didn't save the UK company mentioned above. Size doesn't matter.

My site is non-commercial

So what? You may have just a personal blog with no advertising or products for sale, but you are still using someone else's property to add value to your site. Whether you make money out of your site is entirely irrelevant. And it's unlikely the courts will take this into account when deciding damages.

I've credited the photographer

Oh, good for you. I'm sure that's given the photographer a warm glow of satisfaction. Unfortunately, photographers can't use credits and warm glows for paying for things like food. In the professional world, a credit is assumed as a right. But a photographer's business relies on getting paid. Providing a credit does not satisfy the requirements of copyright law. You're still stealing.

This excuse is often accompanied by...

I've linked to the photographer's site

Another big whoop. See I've credited the photographer above for why this is irrelevant. I mean, seriously, how much business do you think a photographer is going to get as a result of a link from your site?

It's not watermarked, so I can use it

I think the reasoning here is something along the lines of, "If the photographer hasn't marked it as his/her property, then it's okay to use it". This is just as wrong as the if it's on the web it's public domain argument. There is no requirement to watermark images in order to protect copyright.

There's no metadata, so I can use it

This is a variation of the watermark myth. Many image formats, such as JPEG, allow you to store 'metadata' - information about the photo - in the image file itself. Professional photographers store data such as their names and web addresses, caption details and keywords in IPTC metadata. And digital cameras automatically store technical info about the image in EXIF metadata. Alas, many image hosting sites automatically strip out IPTC and even EXIF data. And just as with watermarks, the lack of metadata does not alter an image's copyright status.

There's nothing to say it's copyrighted

Another variation on the two above - in fact, a sort of general version of those. The fact is that in most places in the world, an image is automatically copyrighted the moment it is created. There is no requirement to go through any kind of 'copyrighting' process in order for the image to have copyright protection. (Even is the US, the process of registering images with the Copyright Office simply changes the nature of the damages one can recover when copyright is infringed. Such registration isn't needed to confer copyright on an image.) In short, you have to assume that the image is copyrighted. The lack of any indication about an image's copyright status is irrelevant and doesn't give you a legal excuse to use it.

I couldn't find out who it belonged to

Well, that's your failing. Just because you haven't been able to identify the owner doesn't mean you can use it. Try this experiment: go to a parking lot. If you're lucky enough to find an unlocked car with the keys in the ignition, drive it away. When stopped by the police, explain that you couldn't work out who the owner was so you thought it was okay to take the car. See how they laugh, pat you on the back and wish you a safe journey.

Other sites are using the image

This will help you in one way, and one way only. You and the other site owners could band together and hire the same lawyer to defend yourselves. That way, you might get a bulk discount which means slightly lower costs. You might only lose your house, but not your car. And have you considered that the other sites might have paid for their use of the image?

So what do I do?

It's a minefield, isn't it? With all kinds of image licensing schemes, varying copyright laws across the world, and a flood of images with no identifying details, how do you know whether you can safely use that image?

Here are some very simple rules that will keep you out of trouble - and out of court:

» Assume the image is copyrighted. As described above, most photos are copyrighted automatically.

» Assume you have to pay for it. This follows on from the above point. If it's copyrighted, it's someone's property. If you want to use other people's property, it's reasonable to assume you'll have to pay for that, no?

» Assume you need permission to use it. Even if you're happy to pay for the image, you can't just use it and think "I'll pay when the rights owner gets in touch". Copyright infringements are not about not paying for images - you infringe copyright when you use an image without permission. Even if you could prove that you intended to pay, you could still find yourself paying damages for not getting permission first.

» If you can't work out who it belongs to, don't use it. How can you get permission if you don't know who to ask?

In fact, that last point brings us to our most important guiding principle:

» Assume you can't use it.

Yes, I know, you might really, really want to use that image. But if you don't know if it's okay to use it (which it probably isn't) then it's safer and more honest not to do so. After all, what overriding need do you have to use it? Why is it so important that you use that image? And why is this more important than photographers' rights to be compensated for their work and skill?