The Great Graphic Dilemma - Using Graphics from Others

Graphics (or ‘works’) are everywhere. They are on every website, they are on every ad, they are posted across social media, and they are soooo easy to copy and paste…but is that legal? What if you credit where it came from? What if you only use a link?

You may run across one of these situations:

• Wanting to grab a graphic or worksheet from someone to share – even without alterations – and just give credit to the creator
• Create a freebie and attached a cool graphic that belongs to someone else or you’ve randomly found on the web

Let’s start with the base of legal protection surrounding most of those cool works you see online: THE COPYRIGHT. This is the baseline to keep in mind anytime you see another graphic, product, download, etc. online.

Copyrights

The United States Copyright Office (USCO) defines a copyright as, “A form of protection provided by the laws of the United States for ‘original works of authorship’, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations”. In other words, a copyright is what legally protects your work from being copied by others.

A copyright comes into existence the moment that the work is created and registration with the USCO is not required but may provide additional benefits, for example, specific damages for copyright infringement. Copyrights expire at a set time period. For example, for a work made by an individual, the copyright will expire after the life of the author + 70 years.

Using a Copyrighted Work

In general, a copyrighted work may only be used if you have permission/license from the owner for the specific use. Some exceptions to that rule include:

• Public Domain: These are works that are owned by the public, rather than by an individual. Generally, these works have become public domain after the expiration of the copyright. It is important to note that there may still be a copyright on a collection of public domain works, such as a collection of photographs or poems.
  • It is important to note here that a work could be in the public domain, but it could still be protected by a trademark (think a logo with an image of the statue of liberty).
• Fair use: Copyrighted works can be used without permission for a limited and transformative purpose. What this includes has been litigated for decades, but some examples include:
  • Commentary: If you are describing or critiquing a work, you may reference limited portions of the work for that purpose without permission from the owner. For example, writing a review of a car for a magazine or commenting on the results of a new study on cancer.
  • Education: This is a fairly restrictive exception allowing the use of copyrighted work without permission in a non-profit classroom setting.
  • Parody: If you are poking fun at the original work, you do not need permission from the owner.

If you still want to use a copyrighted work that doesn’t fall within one of the above exceptions, you must get license to do so from the owner. The basic steps to do this are:

• Figure out who the owner of the work is. This may be as easy as looking at the credit or the contact info for the website. There are also websites that will run searches based on the content itself to find the original owner.
• Contact the owner and explain what copyrighted work you are interested in using and how you would use it in detail.
• Negotiate terms and payment with the owner. How long can you use it, where can you use it, how can you use it, etc.
• Get the agreement in writing.

Remember that if the owner says you may not use it, there is nothing further you can do. If you go ahead and use it without permission, you will likely be committing copyright infringement.

Trademarks and Service Marks

Another common image you may run across is a logo or brand name. These are likely legally protected from use by trademarks or service marks.

The United States Patent and Trademark Office (USPTO) has defined a trademark as, “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” The USPTO defines a service mark or “mark” as, “a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods.” These two terms are often used interchangeably. In general, a trademark and a service mark protect the relationship between the mark (e.g., logo or brand name –the Nike swoosh or the name ‘Coca-Cola’) and the owner. The intent is to allow the consumer to identify the actual source of the product.

Each comes into existence at the first use in commerce or when it is registered with the USPTO. As with copyrights, registration may provide additional benefits for the owner. The mark is protected as long as it is actively used in commerce.

Using a Trademark or Service Mark

Use of trademarks or service marks requires permission from the owner for all commercial purposes. Trademarks and service marks can be used without permission of the owner under certain circumstances.

• Fair Use: Trademarks or service marks can be used without permission when the use is for description or identification reasons that do not confuse the public regarding the source of the good/service. For example, an article about the soda industry can use the trademarked names of companies. Some specific uses stemming from this exception that may warrant a closer look due to some ‘tricky legal nature’ include:
  • Comparison: A competing company may use a trademark or service mark in comparative advertisements.
  • Parody: A use of a trademark meant to make light of the mark is generally allowed.

How to Avoid a Copyright/Trademark Headache AND Still Have Cool Images

There are some alternatives to help avoid worrying over whether you are complying with copyright and trademark laws. Some examples are:

• Creative Commons License: The creative commons license is a popular way for owners of a copyright to allow wide use of the covered work. The conditions of each creative commons license will vary based on the work, so make sure you read the fine print.
• Purchase a Work: Another option is to purchase works, which are widely available on websites such as Flickr and Shutterstock. Some of these works may require you to include a link, credit the source, or nothing at all. What is required for use will be dependent on the company and the specific work.
• Linking to the Work: One option is to provide a straight link to the original work’s website, however, you will lose out on utilizing the work on your website. Kind of defeats the purpose, but good to know it is legal. Remember, this has to be to the original source who owns the copyright, trademark, or service mark and not an infringing source.

It may seem like you have a wealth of works at your fingertips just ripe for the taking, but it is always wise to dig a little deeper to make sure you are in compliance with the law.