Why use of unlicensed online images may constitute copyright infringement.
All original images and photographs attract copyright automatically. No registration or copyright notice is required for copyright to exist.
Owning the copyright in an image means that the creator or photographer holds the exclusive right to reproduce (“copy”), adapt (“modify”) and publish that image or photograph. If a third party copies or modifies another person’s image or photograph, on for example its website or blog, or in any way distributes, without the consent of the owner of the copyright, copyright infringement occurs.
The owner of the copyright in the image or photo which has been reproduced or adapted by a third party, without the owner’s consent, is entitled to compensation for the unauthorised use of their artistic work. This includes, the right to seek an interdict, damages (including penalty damages), costs and delivery up in respect of any infringing works under the provisions of Section 23 and 24 of the Copyright Act 98 of 1978 (“the Act”) from the High Court. Section 24 (1A) of the Act further provides that instead of damages the copyright owner may, at its option, be awarded an amount calculated on the basis of a reasonable royalty which would have been payable by a licensee for the use of the relevant image or photograph.
Accordingly, the copyright in an image or photo would be infringed, and a third party could be held financially liable, notwithstanding:
- that the third party found the image or photograph on the internet without it having a copyright notice;
- was not aware that reproducing the image would constitute copyright infringement;
- altered the image to an extent that the original image is still identifiable;
- accredited the original creator or photographer and/or provided a link to the source of the image; or
- immediately removed the infringing image from its website or platform.
The Act does provide for a select few exceptions where the reproduction or adaptation of an image or photograph, deemed artistic works, would not constitute copyright infringement. These are the so called “fair dealing” provisions of the Act which provide that the copyright in an artistic work is not infringed:
- by any fair dealing with an artistic work for the purposes of:
- research or private study by, or the personal or private use of, the person using the work;
- criticism or review;
- for the purpose of reporting current events in a newspaper, magazine or similar periodical; or by means of broadcasting or in a cinematograph film,
Provided that the source of the image or photograph is mentioned, as well as the name of the author if it appears on the work.
- using the work for the purposes of judicial proceedings;
- using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching: Provided that such use is compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work.
In some cases the owners of the copyright in images and photographs do make their images available for use to others by either waiving and reserving some of their rights e.g. on the Creative Commons, or where the copyright owner makes the images freely available for everyone’s use by dedicating the image to the public domain.
The “public domain” is a term used to refer to creative works where intellectual property laws e.g. the law of copyright, trade marks or patents are waived, not enforced, licensed for no charge, no longer exists or did not exist. For an image to fall within the public domain, for example, the copyright in the image would have expired or would never existed in the first place (i.e. the work was not original). Alternatively, the owner of the copyright could also have waived all rights to the copyright in the image, agreed not enforce them or consented to its reproduction, and indicated that the image forms part of the “public domain”. Images that are available to the public on the internet are not public domain simply by reason of being publicly available.