Found online does not mean free to use

You are writing a post about a community garden and find exactly the photograph you wanted. It appears in search results, on a social feed and in an old newsletter. An image shared that widely looks free to use. It is not, until you find what lets you use it.

Being online and being licensed are different things. U.S. copyright protects an original work as soon as it is fixed in a tangible form, 2 and registration is not a condition of that protection. 5 A missing © notice tells you nothing either: notice is optional for works published on or after March 1, 1989, and its absence does not mean the work can be freely used. 1 Only the current copyright owner of the exact material can give you permission, and the person who posted it may not be that owner. 1 A search result helps you find a work. It is not permission to use it.

Follow the work back to its source

Trace a found work in this order:

1. Find the most original copy: the creator's own page, the publisher's credit line or the stock-library listing, not a repost.
2. Check for a copyright notice and for credits or acknowledgments. A credit line can show that an item inside a larger work belongs to someone other than the owner named in the notice. 1
3. Check the file's metadata. An image file can carry the creator's name, the copyright owner or the licensing terms. 1
4. Search the Copyright Office's Copyright Public Records System, which covers registration and ownership-transfer records from 1978 to the present and from 1898 to 1945. 7 1
5. Look for a permission statement tied to that exact item. A general label such as "free", "royalty-free" or "credit to owner" does not tell you which uses are allowed.

The garden photograph could carry a Creative Commons license. It could be licensed for editorial use in an article but not for an advertisement. It could have been copied onto the page where you found it without permission. In a grid of thumbnails these look identical. The source page is where they separate.

Your use is part of the answer

The same image could illustrate a report, be printed on a tote bag for sale, be shown in a workshop or be critiqued in a photography class. Each is a different activity. The copyright owner controls reproducing the work, preparing derivative works, distributing copies to the public and displaying it publicly, subject to the limitations in sections 107 through 122. 2 So write down exactly what you plan to do before you read any terms: where the work will appear, whether anything will be sold, and who will see it.

Credit does not replace permission. A license can require it, and every Creative Commons license does: credit must be given to the creator. 6 But naming the photographer does not license a use the owner never allowed. Unless a limitation such as fair use applies, you need a license from the copyright owner. 1 Fair use is decided case by case, on the facts, by weighing four factors: the purpose and character of your use, the nature of the work, how much you take, and the effect on the market for the original. No percentage, word count or number of copies is automatically safe. 3 "I found it online and will credit the creator" is not a permission plan.

Choose a route that fits

You have five routes. They are not interchangeable, so pick the one that matches your use:

• Use a work whose license covers your exact use. What a license is actually letting you do shows how to read one.
• Ask the copyright owner for permission, well before you need the work. The first person you contact may work through an agent or may need to refer you to the actual owner. 1 How to ask for permission walks through the request.
• Use a work you have confirmed is in the public domain. See Finding out whether something is in the public domain.
• Rely on fair use or another statutory limitation, after you have worked through the four factors for your specific use. 3 See How fair use works in the United States.
• Make your own.

For the garden post, an original photo of the garden may tell the local story better than a generic image. If one particular found photograph is essential, ask its owner. If it is decorative, choose a well-documented alternative. The creative decision and the rights decision can point the same way.

Keep the record with the file

When you use a licensed or permitted work, save the source page, the license terms or receipt, and the permission email next to the file. A colleague who opens the project next year should see why the image is there. The record shows what you relied on. It cannot cure a license from someone who was not the owner, because only the current owner can grant permission. 1

Check the people and works inside the image

A photograph can contain other works. A sculpture, mural or poster in the frame is a work with its own owner and its own exclusive rights. 2 People in the frame raise a separate question. In New York, using the name, portrait, picture, likeness or voice of a living person for advertising or trade without that person's written consent (or, for a minor, a parent's or guardian's) is a misdemeanor. 4 Before the garden photo goes into an ad or onto merchandise, get written consent from each identifiable person in it. Faces and voices are not just another asset covers this in more depth.