Infringement vs inspiration - when is it okay to use that image you’ve found…?

We’ve all been there. Found a beautiful image that inspires us, and with the internet it is even easier to find just the right image for our business…
 
But when is it okay to use such an image?
 
Sometimes it easy to tell as the owner clearly watermarks the image with a copyright warning or sets out clear conditions of use. However, even if there is no such warning, there may be a number of risks in using someone else’s image.
 
1.  Copyright
Copyright will automatically exist in any original artistic work. The word “original” means that the artistic work in question is the result of the person’s own independent labour, skill and judgement - any parts of the work that are copied from somewhere else will not be protected by copyright.  The term “artistic work” includes sketches, photographs and drawings. Although it is always wise for the owner of a copyright work to include a copyright warning (for example “© Rachel Triplow 2017”), copyright will exist even without such a warning. In light of the Berne Convention, the owner of copyright will have rights in most countries. For example, an Australian can claim rights under the New Zealand Copyright Act if their copyright work is infringed here.
 
It is also important to note that changing something by x% will not avoid copyright infringement - it’s not how much you change, it’s whether you have copied a substantial part of the core of someone else’s work. Size definitely doesn't matter with copyright.
 
2.  Trade Marks
Another possibility is that the owner of the image has trade mark rights.  Even if a work is not “original” and therefore is not protected by copyright, it may be possible for the owner to claim that the image has become distinctive of their goods or services, or that they simply have a trade mark registration. As with copyright, it is wise for the owner of a trade mark to include a warning (for example the ® symbol if the mark is registered and/or the ™ symbol which can be used at any time), but trade mark rights may exist even without such a warning.
 
Unlike copyright, trade mark rights are territorial and will depend on a trade mark registration in the relevant country and/or sufficient reputation that consumers would be confused if someone else started using the same or similar mark.
 
SO, WHAT DO YOU DO?
 
Check out the Creative Commons search engine at https://search.creativecommons.org/, which lists all the places where you can find images that are available to use commercially. Or if there is one image you really really want, approach the owner and ask for their consent before you start using it. 
 
Definitely do NOT go to your graphic designer and ask them to tweak someone else’s image for you, as this they could not would not should not do….

Written by Rachel Triplow  |  www.arcip.co.nz