As an experienced marketing professional and designer, I have overseen the creation of content and graphics, as well as the procurement of images for websites and marketing materials. Throughout the years, I have found that the process of creating graphics and finding images should be approached with caution. While you might think that images or artwork you find on the Internet or on social media are free for you to use, copy, or download, that is not typically the case. It is prudent to assume anything you see on the Internet (images, text, videos, music, etc.) is protected by copyright and take caution in what is used; otherwise, you may face legal ramifications.
This was the case for Fernando Mico, the owner of Violent Hues Productions, LLC, a film production company, who found a photo taken by Russell Brammer on Flickr and posted a cropped version of it on their website, novafilmfest.com, in 2016. Mico believed he had found the image through a Google Image search, which then lead him to Flickr. He asserted that he did not see any “indication on the photo itself or the Flickr website that the photo was copyrighted,” and he assumed the photo was free to use without obtaining permission or paying for a license. Upon discovering his photo on Violent Hue’s site, Brammer ultimately filed a copyright infringement action against Violent Hues (Brammer v. Violent Hues Productions, LLC). In 2019, the Fourth Circuit Court of Appeals ruled in Brammer’s favor and pronounced that the film company’s use of the photo did not meet the exception of fair use.
Brammer v. Violent Hues Productions, LLC clearly shows how simply using a photo you find on the Internet can potentially land you in hot water. Even though Mico didn’t see an indication that the photo was copyrighted, it still was. According to Washington State University, “the formalities of registration and copyright notice” are not required for a work to be protected by copyright. So, how do we know if something is copyrighted then?
WHAT IS REQUIRED FOR SOMETHING TO BE COPYRIGHTED?
While works don’t need to be formally registered or display an accompanying copyright notice, there are three requirements for a work to qualify for copyright protection:
- The work must be “fixed in a tangible medium of expression.”
The work can be written down, typed, or printed. It can be recorded or scored. Basically, the work must be able to be seen, heard, or read by other people. It can’t just live in the creator’s head. This means even a doodle on a napkin, a poem scribbled down in a notebook, or even something stored in the RAM of a computer meet this requirement.
- The work must be original.
The author or creator of the work must have created it themselves without copying someone else. This doesn’t mean the work can’t have similarities to other works, but a person cannot claim or copyright someone else’s work.
- The work must be creative.
Creativity can be a subjective concept. That said, as cited by Washington State University, “the Supreme Court says, ‘…the requisite level of creativity is extremely low; even a slight amount will suffice.'” As long as an author created the work with some creative spark, this requirement is met. In one copyright infringement case, a precedent was set that a work must at least be more creative than a phonebook, that is more creative than an alphabetical list of phone numbers, which is not inherently creative.
If a work meets all three of these requirements, it is protected by copyright automatically, even without being registered. For example, in the Brammer v. Violent Hues Productions, LLC case, Brammer’s photograph was tangible because it could be viewed by other people on his website and on the photo sharing sites where he had posted it. It was original, because Brammer took the photo himself, and it was creative because of the stylistic choices Brammer made when taking the photo. Therefore, it didn’t matter that Mico didn’t see a copyright notice, the photo was still protected by copyright.
It is important to note that the idea a work is based on cannot be protected by copyright. For example, there are numerous songs about love being more powerful than material things (e.g., “All I Want for Christmas Is You” by Mariah Carey, “Give It Away” by George Strait, “Paper Rings” by Taylor Swift, etc.), but the idea itself cannot be copyrighted. That would go against the purpose of copyright law. While copyrights serve the purpose of protecting creators and their work, they also serve to promote creativity and the creation of new and original works. By not allowing general themes and ideas to be copyrighted, more creators can continue exploring and expanding on them with new works.
It is imperative, when selecting images or sourcing content off the Internet, that you are cautious about what you copy, download, or use. Using something that is protected by copyright, without permission, can lead to the same situation that Violent Hues Production, LLC faced. You may find yourself in lengthy court proceedings with potential fees and damages owed. In part two of this guide, I will dive deeper into the exceptions to copyright protection and provide tips on how you can avoid copyright infringement on the Internet.
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