Updated: Nov 16, 2021
Without permission, it's still copyright infringement.
Companies and nonprofits are constantly looking for the next dynamic, compelling photo or artwork for their next campaign. Your marketing team searches high and low and voila they find the perfect image. It’s fresh, it’s on-brand, and it is perfect for the campaign. There’s only one question: can you use it?
The conversation might go something like this:
You: “This image is perfect! Where did you find it? Do we need to get permission or something?”
Marketing: “We reached out to the artist, but haven’t heard anything productive back from them.”
You: “Can’t we just give credit and move forward? I am happy to credit them.”
Marketing: “Yep, we can do that.”
You consider it done and never think about that conversation ever again . . . until three weeks later. Your staff is murmuring about a cease and desist letter. The PR folks are worried about social media backlash after the artist alerted their followers to the situation. A meeting comes on your calendar and by then, the situation has a name: copyright infringement.
There is a common misconception that “giving credit” makes it okay to use images, artwork, photography, or just about anything else. Unfortunately, this could not be further from the truth. Under United States Copyright Law, only a copyright owner has the right to use, display, perform, and distribute their work. The copyright owner also has the exclusive right to approve or deny uses of the work. Without the owner’s permission, any use is likely copyright infringement. Copyright infringement is illegal and can carry significant financial penalties.
Think of it this way: imagine that somebody stole your car. But, they took the time to hang a sign on the side of the car that said “this car belongs to” followed by your name. Would you feel better? Absolutely . . . not. It would still be a stolen car and you would still feel like the victim of theft.
Does Giving Credit Do Anything?
If this is true, then why do you see other major companies and organizations giving credit and using attributions? Even though “giving credit” is not a magical cure for copyright infringement, it can still be part of a legitimate process of working with an artist. Specifically, once permission has been obtained to use an image or a piece of art, the artist may put conditions around the use. Oftentimes, one of these conditions is attribution.
In summary: giving credit can be part of the deal for using a copyrighted work. But if the artist never gave permission in the first place, giving credit will not fix the situation.
Moral of the story? There is no substitute for permission.
Thanks for reading the Bevel Law Blog! While this information is hopefully helpful to you, nothing in this blog is intended to be legal advice. Always consult a lawyer before making any legal decisions based on topics in this blog.
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