Can You Get Sued for Sharing That Viral Photo on Facebook?On the EPW Small Business Law PC Facebook Page, Liz asked: “What about posting/using all those snazzy quotes with images that you see shared by friend on Facebook? Some will have an originating website (and I wonder if they own the images, many use quotes and attribute the quote author but not the image creator) and I wonder if the “design” is copyrighted by that site, or perhaps they don’t have the rights to one or the other. Or if we save those quote/images to share later, and do not have the original copyright owners.”

There’s more than one potential legal issue here. Let’s start with the photo.

In the United States, when a photo is taken, the photographer immediately has a copyright on that photo.

That copyright gives the photographer the right to restrict the use of that photo.

So if you copy it, print it out, use it on your website, or upload it to Facebook – you are violating their copyright and are subject to statutory damages of $750 to $30,000, even if the photographer was not actually harmed by your use.

Crediting them, linking to them, or otherwise acknowledging them doesn’t fix it. You are still violating their copyright, even if you include their watermark/name/website.

The only way you can use a photo is to have a permission, aka a license.

There are a couple ways that a photographer may grant a license.

Direct License: You go to the photographer and pay them money to use their photo, or they just give you a license for free. This happens a lot when we hire photographers to take pictures of an event or if we personally know a photographer who casually gives us permission to use a photo.

Stock Photo License: Some photographers make money by licensing their photos through a mass stock photo site such as iStockPhoto or Corbis Images. There, the photographer uploads their work to be licensed via their service, and we contract with them to use images per the terms of the stock photo site’s license from the photographer (paying $49 per photo to use for three months, for example).

Creative Commons License: Photographers may license the entire world to use a photo, according to certain terms. Creative Commons has a set of attorney-drafted licenses that people can opt-into, so their creative works can be used and spread to the world. For example, a photographer may state that their photo can be used per the Attribution-NonCommercial-NoDerivs license, which means that anyone can download and share the photo, as long as they are credited, and it is not changed or used for commercial purposes. One great place to get Creative Commons photos is through Flickr.

Terms of Service: When a photographer uploads a photo to Twitter, Facebook, or Pinterest, for example, they are giving that service a license to use that photo according to that website’s Terms of Service. This does NOT mean that you can just download their picture and use it on another site or for another use, as AFP, Getty and the Washington Post recently learned (lawyers readers can read more at Agence France Presse v. Morel, 2013 U.S. Dist. LEXIS 5636 (S.D.N.Y. 2013)). But it does mean that you can RT, Share, or Re-Pin the post *within the same site* and it is still a licensed use via that site’s Terms of Service.

But what if *someone else* uploads the photo to the social media site?

Let’s say that someone takes a photo off the photographer’s website or Twitter account, and posts it to Facebook, without the photographer’s permission.

Perhaps they credit the photographer, or perhaps they claim it as their own. Whatever.

And then you hit the Share button, because you want to share this cool picture with your Facebook friends.

Are you liable for copyright infringement?

Hum.

Here’s the thing.

When someone took that photo without permission, they were stealing it.

Even though they didn’t charge money for it, even though they just thought it was cool and wanted to share it with people, and even if they credit the photographer’s name and link to the photographer’s website.

It’s still taking something that belongs to someone else and using for their own purposes, without permission/license.

Posting it to Facebook didn’t change that fact.

When they posted that picture to a social media site, under the site’s Terms and Conditions they are promising that they own it or have a license to it. They also promise to indemnify the site (be accountable to them for damages/attorneys’ fees if the site gets in trouble for posting the unlicensed photo).

When you come along and unknowingly hit the Share button on that unlicensed photo, Facebook has protection (because they are indemnified by that person who posted it), but you don’t.

Perhaps you’d be able to argue that you are a third party beneficiary of Facebook’s Terms of Service, as far as it goes to Sharing the photo on Facebook itself, and should also be indemnified by the original poster for your actions. There are some interesting arguments that haven’t been fully litigated yet, and it’s not terribly likely that individuals will be sued.

But yes, technically, you are on the line.

But what about the Fair Use Doctrine?

Under copyright law in the United States, certain uses of a copyrighted work are allowed as fair use, such as for “criticism, comment, news reporting, teaching, scholarship, and research,” according to a four-factor test that is applied by the courts. But this is a really messy doctrine that is never a clear case. It’s not enough that you are reporting the news or not charging for the photo. Typically, it only applies to uses that are non-commercial, that use only a small portion of the work, and that don’t diminish the ability of the creator to sell the work.

Short Answer: posting an unlicensed photo to your business Facebook Page is not going to qualify as fair use.

There are also other legal issues involved, including whether the photographer had a model release from the subject(s) of the photo (giving permission for their likeness to be used, especially if it seems they are endorsing something), and whether the use of the quote or inspirational words is fair use or an infringement of a copyright on the quote (or even possibly trademark infringement).

Here are best practices for using photos online:

Only use licensed photos. Take the photos yourself, use photos licensed through Creative Commons on Flickr, or buy licenses to photos on a stock photo site. There are tons of photos available online at no or minimal cost, with just a bit of search.

Don’t pull photos from one site to use on another site. If you’re going to Share, Retweet, or Re-pin a photo within that social media service, that’s one thing. But never take a photo from one social media site (or blog, or website), and put it on another site, unless you took the photo yourself.

Always keep watermarks, attributions, and links. Don’t ever launder a photo for your own purposes. If the photographer put their logo or name in the corner, don’t crop around it. If you need a non-watermarked version of the photo (to use as your profile picture, for example), you need permission. Btw, this is true even if you are the person appearing in the photo.

Check snopes/google before you share “amazing” viral photos. Just because something is on the internet, doesn’t make it true. Always take 20 seconds to verify authenticity before you pass on something (that may be crap) to your people.

Never steal photos. Photographers deserved to be compensated for their work, just like you do. If you see a photo you like, ask permission to use it. If you need a photo for your blog, buy a license to a photo or take a photo yourself.

(Btw, I took the above photo myself. As such, I can use it here. Taadaa! 🙂 )