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Are you stealing?

11 May 2016

Are You Stealing? Image Attribution

This makes my blood boil.

Image by @hol_fox not attributed on Instagram

Image Source : @hol_fox on Instagram (https://www.instagram.com/hol_fox/)

I’m sure you’ve seen a heap of similar examples in your own Instagram and Facebook feeds – a beautiful image with no credit - or worse, the stale attribution: “Image found on Pinterest”. As a part of the handmade community, I know the disappointment makers feel when people fail to credit them when they use their images, and they’re not alone.

A recent study conducted by the CMO Council found that 65% of senior marketing executives believe that their visual assets - photos, video, illustrations and infographics created by the business - are core to how their brand story is communicated. Both organizations and individuals spend a lot of time crafting and refining their visual representation – to have it re-purposed without credit is both disappointing and potentially damaging, even if the legal grounds for such can be somewhat murky.

In a case last year, artist, Richard Prince, came under fire for re-using people’s Instagram images without permission, then selling them, some for $100k or more. The artists themselves didn’t get a cut of this, and Prince was actually legally allowed to use the images under ‘fair use’ qualifiers because they were on a public forum - Prince used screenshots of the pictures with his own comments on the posts added, which was deemed enough to qualify as a new work. Cases like this show that the law still has a way to go before it catches up with the modern, online landscape – though, of course, that does nothing to help those whose images have been taken without their permission.

In terms of damage, Instagram recently announced that they’ll soon be switching to an algorithm-fuelled timeline, which will see posts sorted in order of relevance to each user, with interactions on each post taken into account when ranking content. As such, it’ll be more valuable than ever to post great, original content – but if people are taking your work and claiming it as their own, that originality is diminished – and it’d be a disaster to see another Instagram user have their content rank higher or get more engagement when they’re using images that you actually created.

Former intellectual property lawyer, Catherine Wilson, who now works as a stylist with design firm Catherine Grace, has written several articles on the rights of creators, with a particular focus on the need for, and value of, correct attribution on social media posts. As Wilson notes: “...under Australian law, if you post someone else’s photo and do not credit the image creator you are actually breaching federal legislation”.

So despite there being some room for interpretation, particularly within the realm of what qualifies as “fair use”, by using an image without proper attribution to the creator, you are, potentially, breaking the law and you can face penalties. This is particularly relevant in Australia, and while some international laws can vary in interpretation, Wilson makes note that:
“In Australia, copyright protection is automatic – there is no registration process, there is no need to place a © on your work or to watermark your images. When a work that qualifies for copyright protection comes into existence – it’s protected, right then at its very moment of creation.”

So how should you credit the creator of the image correctly? Wilson offers two practical tips:
1. “Always, always, tag the creator in the caption of the post, not in a later comment. Once a few comments have been made, the previous comments are invisible, and you’re back to having a uncredited image.”
2. “If you’ve found an image you like, always check that that person who posted it has credited someone else. And if so, follow the trail back to find the original creator and tag them in your re-gram. Yes this does take a little time, but it’ll be far less than you having to create a similar image yourself, so you’re still winning the time race.”

Hashtag Wizdom

Image Source – Collaboration between Catherine Wilson and Jasmine Dowling

Was it Pinterest that took the time to carefully lay out the items in that gorgeous flat lay you want to re-purpose? Did Pinterest study brush lettering for hours to perfect the way the ‘h’ looks in that ‘hustle’ print? Did they make a nude cake, grow roses in their garden and invest in reflectors to make that perfectly styled cake shot look just so? No, they didn’t. And neither did you. Don’t use other creators’ content to falsify your brand engagement and increase your own vanity metrics.

At the end of the day, if you’ve searched high and low and you just can’t find who originally created the image ¬– don’t use it.

It’s that simple.



Words by:
Made It Guest Blogger, Meredith
Guest blogger,

Meredith (a.k.a. “Honest Dave”)

Rumble & Co. Co-founder. Creative coach, pixel perfectionist and handmade obsessed.

Rumble & Co. help small businesses realise their dreams. With degree qualifications in marketing and management and experience managing multiple retail and wholesale stores (including eight of their own), whether it's pixel perfect graphic design and creative business development and marketing strategies you need - you'll get results when you work with Rumble.
  • kaetoo

    In addition, taking another person's image and giving them a an attribution does not negate copyright infringement, as the copyright holder the right to decide where their work is published and they might not want their image shared. Make sure that you have permission or use a public domain photo. Some useful articles to read are here:

    http://lifehacker.com/5992419/the-best-ways-to-be-sure-youre-legally-using-online-photos
    https://blog.bufferapp.com/free-image-sources-list

  • threebeansinapod

    Great post Meredith, it really is that simple!

  • Milbos

    Hi Kate - thanks for bringing that up - the article you shared is an American opinion piece interpretation and is from 2013 but it is of course best practice to use ask to repost. However, in Australian copyright law there is a fair dealing exemption in the Act and you can repost copyright material if it is for the purpose of criticism or review, reporting of news, or parody and satire. What constitutes fair dealing is a matter for the courts to decide on the facts of each case according to the Australian Attorney Generals Department. But Australian case law has not yet argued a case on a reposted Instagram image that has been reproduced but not on a product for sale. According to Ken Philp - Bennett and Philp lawyers, 'Photos on Instagram raise a question over traditional concepts of social media sharing. It is commonplace for images to be uploaded to Instagram in the knowledge others may repost the image to their own Instagram page, or even uploaded for that purpose.

    On that basis you could argue a person uploading an image is giving a form of consent for the image to be shared, but that does not mean that consent extends to using the photo for commercial purposes, such as imprinting it on clothing.' So while it is certainly off limits to use an Australian image for profit - like on a mug or a tee or in an advertisement; something with attributable transactional monetary gains, reposting to comment, review, critique, parody, satire or report on the original posters image under the fair dealings exemption is not yet legally tested in Australia, as confirmed by Catherine Wilson). If at any time the original poster asks you to remove the image (including by issuing new a DMCA notice or contacting Instagram) you legally must, but the copyright penalties under the Act are not enforceable unless this has occurred. - Jo

  • kaetoo

    Great points, Jo. I think basically we're in agreement to seek permission wherever possible and to ALWAYS give attribution.

  • kaetoo

    This is a good summary specific to Australia:
    http://www.artslaw.com.au/info-sheets/info-sheet/legal-issues-for-bloggers/

    Basically, the important paragraph is you can only use someone else's images if:
    - the copyright duration has expired and the work is in the "public domain";
    - you have the copyright owner's permission;
    - using the image would be a "fair dealing" for the purpose of criticism and review, parody and satire, or reporting news AND there is sufficient acknowledgement; or
    - the image is "clip art" – sometimes referred to as royalty free work, copyright-free work, shareware or freeware (e.g. Creative Commons resources such as OpenPhoto).

    Just sharing a beautiful image on IG or Facebook is not actually criticism and review, parody and satire, or reporting news, so it pays to ask for permission.

  • Milbos

    Thanks Kate, we are in agreement on best practice. Except for your last statement - sharing an image with attribution and a comment has not been legally tested to not fall under the fair dealings clause of the Act. It needs to be determined under case law so until there is a ruling you can't say that it doesn't.

  • kaetoo

    Thanks Jo

  • Interesting read! In order to get traffic to stores watermarking is frowned upon but ideally this could circumvent a lot of accidental repinning without credit/sharing without credit.

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