If An Online Photo Does Not Have a © or a Watermark, Can I Use It?

Probably not.  There is a common misconception that if a photograph does not have the little ©, or some sort of watermark designating the picture as belonging to someone else, it is not protected by copyright law and is free for the taking.  That is simply not true.  Copyright protection attaches the moment an author fixes a form of creative expression in a tangible medium.  So, for example, the photographer that takes a picture and uploads it to his blog owns the rights in the picture regardless of whether he is using © or a watermark.  Such is true for all forms of creative media, including photos, music, and video.

Using a photograph, or any other media, without the permission of the owner constitutes copyright infringement.  Copyright infringement is a strict liability tort, so whether or not you realized you were infringing upon another’s copyright is not a defense.  This also means that when your website designer places an image on your website, you may also be liable for copyright infringement even if you believed the designer had permission to use the image.

Some major companies are known for searching the internet for infringing uses of their copyright protected material and will send infringers invoices for thousands of dollars or threaten to file a lawsuit.  Because of what I mentioned above, most of the time the infringer does not have a valid legal defense to copyright infringement and is forced to pay up.

Therefore, it is very important that all website operators either (1) use photographs, graphics, videos, and music they or their employees have actually created themselves or (2) confirm that they do in fact have a valid license to use the media on their site.  Anything less may result in thousands of dollars worth of copyright infringement liability.

If you have any questions about copyright law, if you have received an invoice from a copyright holder alleging infringement, or if somebody is using your copyrighted materials without a license, contact one of our attorneys today.

About the Author

Elliott Stapleton

Elliott is a partner in the firm of Cornetet, Meyer, Rush and Stapleton serving clients throughout Ohio. Elliott's business clients range from small single member companies to large privately-held businesses. CMRS Law provides legal services which include advice on Business Formation and Transactions, Real Estate Transactions, Trademark Law, Copyright Law, Estate Planning, Trust Administration, Probate Administration, and Succession Planning. CMRS Law serves clients at two locations: 123 Boggs Lane, 1st Floor, Cincinnati, Ohio 45246 and 2101 Grandin Road, Suite A, Cincinnati, OH 45208