Copyright Infringement and Images Found on Internet

The Internet makes it easy to download and copy photographs, illustrations and other images into articles, newsletters, websites and other such promotional or instructional materials. Many of these images are owned and copyrighted by private parties. Users must take steps to avoid copyright infringement of images found on the Internet when using the images without permission.

Although copyright infringement claims are not new, they are an area of risk for everyone that accesses the Internet for image files and content to enhance marketing, training and education efforts.

For public entities, this risk of copyright infringement is real when looking to enhance materials without significant cost. Therefore, to avoid potential legal issues, members should ensure that any use of images on their websites or in printed materials does not violate property and copyright interests of others. Members should keep in mind that they may be exposed to copyright risk when using a third party to create materials for their purposes, such as a printer or freelance designer.

This includes images generated by artificial intelligence (AI). Generative AI tools may be trained using images, text, videos and other media from various online sources, some of which may be copyright-protected works. These tools could potentially produce text or images that may be similar to copyright-protected works. Although the law in this area is still developing, AI-generated images or text could infringe on copyright protections and violate the law.¹

Determining Copyrighted Work

Generally, copyright law gives owners of copyrighted works (such as photographs or illustrations) certain exclusive rights to the work. These include the right to determine and limit the work’s use, reproduction and publication. Contrary to popular belief, to copyright a work, the owner does not need to put a copyright symbol on it or file any paperwork. Rather, the work is copyrighted immediately upon completion. The work can be registered with the United States Copyright Office, but it is not required.

If the member has not created the work, it should presume that the work is copyrighted by someone else. Therefore, a first step is to determine if the member’s particular use of a copyrighted work requires permission from a copyright owner.

For example, copyright law provides an exception for “fair use” of a work. Fair use is a doctrine that permits someone to use small portions of a copyrighted work for certain types of uses: criticism, news reporting, teaching and research. Fair use is determined on a case-by-case basis for each copyrighted work or use and is based upon factors set forth in copyright law. More information about the fair use exception can be found at Copyright.gov/fair-use/.

Also copyright laws do not protect works in the public domain. A work is in the public domain if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. These works do not need permission from the owner to be used.

If it is determined that permission from the copyright owner is needed or desired, then the next step is to find out who owns the copyright and seek permission. An entity can often buy a license to use a copyrighted work. There is no standard license for use of a copyrighted item.

A license can be granted for specific types of uses (e.g., electronic or print), purpose for use (e.g., commercial, educational) or frequency or number of uses.

If the images used have been taken from a stock photo collection or CD, the licensing agreement for that collection or CD details the limitations of their use. If an image is AI-generated, the terms of use or the terms and conditions for the AI platform may limit use of the image. Members should review the licensing agreement or terms of use carefully.

Members may contract with a third party to develop or produce their websites or publications. These third parties may be responsible for selecting graphics. When relying on the representations of a third party regarding rights to use an image, a member should ensure that the third party will “defend, indemnify and hold harmless” the member for any allegations or challenges regarding copyright or licensing infringement.

This is especially important as members may be liable for copyright infringement as end users, even if they did not select or place the image.

Available Resources Regarding Copyright Infringement

The United States Copyright Office is a good source of information about copyright issues, including the document “What is Copyright?” One resource that may be particularly helpful is “How to Obtain Permission,” which contains a section on researching copyright status.

Because copyright law can be complex and fact specific, MCIT recommends that members consult with their legal counsel to assist in the analysis of and to answer questions about a potential copyright situation prior to taking any action.

In the event that a member receives a letter or claim alleging copyright infringement, the member should immediately forward it to the MCIT Property/Casualty Claims unit for an evaluation of coverage.

¹ Note: Generally, only material that is the product of human creativity is copyrightable in the United States. Therefore, AI-generated materials may not receive copyright protection. See Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190 (March 16, 2023). This means if a member decides to use AI-generated images or text, it could potentially be used and reused anywhere and by anyone.