Jeremy Hill, a student in Jon Pfeiffer’s Fall 2012 Mass Communication Law class at Pepperdine University, wrote the following essay in response to the question: “You found a great picture on the Internet, should there be limits concerning how you can use the photo in a school paper? On your personal website? At work?”
While we do live in America the land of the free, there are still certain restrictions put in place on forms of media that some people might feel should be deemed as public however we live in a capitalist society and someone has to pay to keep those certain types of media going. If I were to find an awesome photo through Google or some other search engine, while my first inclination used to be that whatever you find on Google is ok to use in anything, now I am aware of the fact that there are certain royalty fees one would have to pay in order to use the photo. If you were to post the photo on something such as Facebook or Twitter or another form of social media, there should typically be no legal repercussions for using the picture. However if you were to use it in a presentation or newspaper article or your own personal novel where you would be generating a profit from said picture, the original author of that picture could and probably would in fact sue you if you made enough money off of it.
Generally speaking however, if one were to exercise their use of the First Amendment then in theory you could state that the use of the other individuals’ photograph was a form of your personal expression and in a case where the person would sue you for the profits you made using their photo, they would have to prove beyond a reasonable doubt that their photograph was in fact the main reason why you gained some kind of profit off of your product. Because if their photo is not what is causing you to gain a profit you are in no way harming their own personal business by using their photo as you are not taking away from their profits as an artist with your own profits. However, it could be viewed that since customers could gain access to this photograph through you product without paying the artist who made it originally, then if it were argued that way you would be hindering their business and they would have grounds to sue you and more likely win.
Jeremy Hill is a senior at Pepperdine University majoring in Media Production.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.