Many people use images sourced online to promote their businesses. When you are using online images that are not owned by you to create a post or update a social media account, you should ensure that you have the correct licenses to use that image, or that the use is covered by a fair dealing exception.

It is a common misconception that fair use applies in Australia and to online content. “Fair Use” is a defence for infringement of copyright law in the United States. If you are posting content and running a business from Australia, then Australian copyright law applies to your business.  The Australian equivalent of “fair use” is “fair dealing”. This is narrower than “fair use” in the United States.

Although the Australian Law Reform Commission recommended in a recent review (Copyright and the Digital Economy (2013)) that fair use be adopted in Australia, this approach has not yet been taken up.

What is fair dealing?

It is set out in a specific list in sections 40 to 43 of the Copyright Act 1968 (Cth).

You can generally use work and materials found online if:

  • Copyright has expired;
  • You are using an insubstantial part of the copyright work;
  • The work has a licence which allows for copying or free use;
  • You have purchased a licence to use the image; or
  • One of the fair dealing exceptions applies.

Fair dealing exceptions are covered in the following areas:

  • Research or study;
  • Criticism or review;
  • Parody or satire;
  • Reporting news;
  • Fair dealing for professional advice; and
  • Educational and special use exceptions.

You need to consider if your use falls within one of these exceptions. Using images found online for the sole purpose of promoting your business is generally not a use that falls within one of the above exceptions.

You also need to consider the purpose. Take the example of “shop the look” where businesses post a celebrity image for the purpose of promoting their own products. “Criticising or reviewing” an image of a celebrity’s outfit may fall within a fair dealing exception, but if the purpose is to promote the sale of products, not an academic or serious review, it may not be covered.

What can I do if someone claims I am breaching his or her copyright?

If you have obtained an online image without the permission of the copyright owner and used it, and the copyright owner has now made a complaint, we recommend that you cease use of the image immediately. Usually this is the end of any copyright dispute between 2 individuals.

However, you should be aware that the copyright owner is still entitled to take action in court within 6 years of the infringement date. If the court finds that there has been copyright infringement, the court may grant interlocutory relief and other final orders.

If you have received a letter of demand from someone who believes that you may have infringed their copyright, we recommend that you speak with an online lawyer to discuss the options available to you.

Conclusion 

If you have questions about posting images online, then you should speak to an experienced online lawyer. An online lawyer can assist you and your business with complying with copyright and intellectual property laws across a variety of platforms. At LegalVision we work with online businesses on a regular basis and can advise you on legal issues related to promoting your business. So if you’re in need of legal advice, contact us on 1300 544 755 and speak with one of our online lawyers today.

Priscilla Ng

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