But caution is advised. Not everything that is freely available on the internet can be used without further ado. The consequences of unlawful use of images can be very unpleasant. You may face damages and injunctions from the copyright holder. But it can also lead to a potentially embarrassing situation, as the ‘offender’ is considered a legal violator despite having used the image in good faith. 

Even if it does not always seem so, images from the internet are regularly subsumed under the categories of ‘works of literature’ or ‘works of fine art’ according to copyright law. It should be noted that a work does not necessarily have to be the result of greater intellectual effort in order to enjoy copyright protection. Therefore, if in doubt, assume that the work in question is protected by copyright.

As a general rule, only the author may use the work they have created.

Except:

• the author or other entitled party contractually grants another party the right to use this work in a certain way, or
• the free use of the work is already permitted by law for certain purposes (so-called ‘free use of works’), or
• the copyright protection has expired¹. 

Obtaining images from an image database²

If you obtain third-party image material, for example from an image database, you are likely to enter into a contract with the operator of the database (sometimes without even being aware of it). It is therefore necessary to find out how and for what purpose the image material in question may be used. If, for example, you purchase a licence to use an image in a book with a specified print run, using the same image in excess of the print run will make you liable under copyright law. Similarly, you are committing copyright infringement if you use an image to advertise a course, but you have only purchased the licence to use that image in that course. This is because the licence only covered use in the course itself and not related activities. 

It is therefore necessary to check before each use of image material whether you have a licence for it, whether it can be used free of charge in compliance with the copyright notice, or whether there is a copyright privilege within the narrow limits of the law.

If the free use of image material from a database is permitted, this is only permissible if the author is cited accurately. The copyright notice, i.e. the information about who the author of the image is, must be worded exactly as it appears in the database. Even the slightest deviation may constitute a copyright infringement. It is also usually necessary for the copyright notice to be attached directly to the image used. In the case of a free licence, it is advisable to document that the licence was granted free of charge at the time of use (saving the licence terms, documenting the time of use of the image, screenshot of the location on the internet that specifies how the copyright notice is to be attached).

Regardless of whether a licence has been purchased or a free licence for the lawful use of image material is available, it is usually necessary to attach a corresponding copyright notice directly to the image material used, otherwise the image material will be used in violation of copyright law.

Dwarfs on the shoulders of giants

This old metaphor shines through in the right to quote. For what would we be if we could not draw on the achievements of others and reproduce them? The right to quote attempts to strike a balance between different interests: the interest of the author in having sole control over their work and the social interest in building on previous achievements. Now, not every work cited will be the work of a giant, but even a poor work can enjoy copyright protection. Therefore, a published, copyright-protected work may be reproduced, distributed, made available to the public and used for public lectures, performances and presentations by anyone for the purpose of quotation, provided that the use is justified by its specific purpose. If you wish to quote an image, you must therefore bear in mind that this is only permissible if you engage with the content of the image and add the name of the author. Simply ‘embellishing’ your documents does not entitle you to use someone else's image under quotation law; you must engage with the content of the image. If you wish to quote from an image database, it is essential to observe the relevant licence conditions.

AI-generated images

Photos created using AI are not subject to copyright. This is because authors can only be humans, and there is still no AI that has been attributed humanity. Therefore, for certain applications (e.g. images purely for decorative purposes in a paper or presentation materials), it seems advisable to use such AI-generated images. However, it should also be noted here that the licence terms of the AI may impose restrictions on the use of the images generated with it. And under certain conditions, even a very extensive prompt can enjoy copyright protection. 
 

¹ In Austria, the term of copyright protection is 70 years after the death of the author. This means that after this period has expired, a work is considered to be in the public domain and can be used by anyone without the consent of the author or their heirs.

² e.g. Adobe Stock

Text:  Pascal Prabitz, Irene Titscher