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Crowdsourced Questions: Can I put someone else's photograph on my website if I don't know who took the picture or who owns it?

A question came in to my office recently. Someone asked if they could use a photograph on their website. The catch? They did not know who took the photograph or who owned the photograph. Nor did they know the copyright status of the image, i.e., whether it was in the public domain or usable under a Creative Commons license.

Generally speaking, the answer to that question is necessarily going to be “no”. Copyright infringement is a federal criminal offense and it is enforceable both under criminal proceedings (i.e., brought by law enforcement) and by civil lawsuits (i.e., brought by a private person or a non-criminal governmental enforcement authority).

The best practice is: don’t use anyone else’s work without their permission. If you’ve found a photograph online and cannot figure out who took it or who owns it, your safest bet is going to be to find a different image to use.

There are many sources to find royalty-free stock photographs. These sites offer the opportunity to purchase a limited license to use an image from their gallery. Purchasing a license from a stock image supplier ensures that you can use the image for your own purposes without infringing the copyrights of another person.

The worst case scenario if you use an image that you do not have the right to use is a copyright infringement lawsuit. Defending a federal copyright lawsuit can cost tens of thousands or hundreds of thousands of dollars in legal fees. Additionally, you will not be able to use anything that incorporates the infringed image. If it’s on a website, you’ll have to take it down. If you’ve put the image on a product, you’ll have to remove it, and that might involve trashing an entire production run of something you’ve created.

One last note of great important: you may think that if you are using a copyrighted image not for commercial purposes (i.e., you’re not making any money from the use) then it is “ok”. That alone is false. Copyright law in the United States includes a defense called “Fair Use”, but it does not automatically apply in all non-commercial uses. A copyright lawsuit defendant must prove that their use was “fair”. That in turn is based on numerous factors and requires legal analysis. Before you consider relying on a Fair Use defense, your best bet is to consult a copyright attorney who can analyze your plan and provide an opinion regarding the availability of the fair use defense to your particular situation.

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