Posting images

Sadly, the question isn't as simple as it sounds and, without more details, it is impossible to get anywhere near a definitive answer.

First, I don't know the nature of the image in question and whether it is protected by copyright. It could either be a very old image and in the public domain or it could be an image so simple, for example a small transparent gif used to aid in layout, that it doesn't meet the qualifications.

I also don't know how the image is being used. Are we talking about copying the image and uploading it to your own server or simply copying the address and hotlinking it? Both raise different legal issue and you can read about some of them in this thread:

http://performancing.com/legal-issues/is-hotlinking-a-copyright-violation

Finally, I don't know much about the nature of the use. Is it for some kind of commentary or criticism? Are you using the whole of the image or just a part? Does the use create a new work or just replace the previous one? These are issues that can have a bearing on the legality of such a use.

With that in mind, I have to make a few assumptions. First, we'll assume that the image is copyright protected as nearly all images on the Web are. Even icons and menu items meet the qualifications for copyrightability so there is little reason to doubt that this image would.

Second, we'll assume that we're copying and reuploading the image as that is most likely given the situations you described. Though it isn't 100% clear, it is what I am guessing.

Finally, we'll assume that the use is not for any kind of commentary or criticism, that it just for display or to be an element of the site.

If all of the above is accurate, than the answer is no, it is not legal. It is copyright infringement and the person who holds the copyright in the image can take action. If the work is posted on the Web, they can obtain its removal through the DMCA, in print, they can file suit or send a cease and desist.

There are exceptions to that rule, the largest being fair use. However, determining whether or not a use is fair is almost impossible. That is a decision that is based on what a judge and/or jury thinks about the matter. It is based on a combination of factors including the damage done to the market for the original work, whether the use was transformative or substitutive (meaning did it create a new expression or replace the old one), how much of the original work was used, etc.

However, there are two things to remember about fair use. First is that it is unpredictable and second is that it is a defense against being held liable for infringement. It doesn't stop you from being sued in the first place. It is best not to rely on it.

The best practice in these situations is, usually, to obtain permission. This can be done either by contacting the copyright holder or by the copyright holder using a specific license such as a Creative Commons License that allows such reuse.

If you are the one looking to use the image, that is what I would do. If you are the one potentially being infringed, then that is what ideally should have been done.

Without more details I can't help much more. The question is very broad but, most of the time, it is against both the law and good ethical practice to copy an image and paste it onto another site, even with attribution.

I would be very hesitant about doing that myself.

I hope that this helps some and please, if you want more details, let me know some of the specifics and I'll fill in the gaps the best that I can.

Jonathan Bailey - plagiarismtoday.com