Lets assume I found an image I would like to share online. But I do not know if the images is somehow protected, I do not know the artist and the website I got it from does not exist anymore. I just have this image without any informations.

Can I, and if yes, how can I use it on my own page. Do I have to mention a source (which I do not know)?

  • 2
    Just because you don't have information on who owns the image, doesn't mean you have free use of it. If you don't have the original source or the license that came with it, I wouldn't assume you can use it with (or without) attribution at all. The original image may not have had an attribution license.
    – Ron Beyer
    May 3 '18 at 19:36

You can use an image if:

  1. It is public domain,
  2. It isn't public domain and you have the permission of the copyright owner, or
  3. It isn't public domain and you don't have the permission of the copyright owner but your usage is fair use or fair dealing as applicable.

To determine if something is public domain or not, you need to know who the author was, when they died, where the work was first published and possibly, depending on jurisdiction, when it was created, if it was registered and re-registered.

If you do not know these things then you need to assume that the image is protected by copyright. That eliminates option 1.

If you don't know who owns the copyright you can't ask permission. That elimantes option 2.

So you need to decide (provisionally) if your use is fair use/dealing. If it isn't, that eliminates option 3. I say provisionally because deciding if it is actually fair use/dealing is up to the court when you get sued.

The only time attribution is relevant (legally) is if it is a condition of the owner under option 2. Other non-legal obligations, such as academic rules, may require attribution.

  • 1
    "The only time attribution is relevant (legally) is if it is a condition of the owner under option 2." - Attribution makes a claim of fair use marginally easier to defend, because a failure to attribute would weigh heavily against you in the "likely effect on the market for the work" factor. By plagiarizing something, you've cast doubt on the true author's originality. Publishing companies don't like that doubt!
    – Kevin
    May 4 '18 at 4:36

I think it's important to be aware that your permission to post the image is largely unconnected with how you attribute the image.

You're dealing with a visual work that is presumably protected by copyright. If that's the case, the author has the exclusive right to publicly display the work, which means you do not have the right to publicly display the work (by posting it online, for instance).

If you knew who the artist was, you might be able to obtain a license from her that would allow you to post it online. The odds are good that that license would require you to attribute it to the artist, but failing to do so would probably just be a violation of your contract, not of copyright law.

But since you can't obtain a license, you have to ask whether there's some exception that would permit you to use it without the author's permission.

The go-to is usually fair use, but we don't have enough information to indicate whether this hypothetical would give rise to a fair use. To do so, we'd need to know more about:

  • the purpose of displaying it on your website;
  • the kind of image you want to copy;
  • how much of it you want to use; and
  • how your use might effect the commercial market for the image.

There are other possibilities, as well, but none that seem particularly useful. For instance, there's the first-sale doctrine, which allows someone who legally obtains a work to publicly display it, but that wouldn't help you because it's limited to displays "at the place where the copy is located." A court would treat the image as being located on a server, not online, so publishing it to your site would not be permissible.

(All this assumes that you're publishing from the United States. Copyright rules are different from jurisdiction to jurisdiction.)

  • 1
    "failing to do so would probably just be a violation of your contract, not of copyright law." - Creative Commons and GPL both operate by terminating the license when you breach it instead of specifying a contractual violation with damages etc. So you actually would be infringing, because you would no longer have a license at all.
    – Kevin
    May 4 '18 at 4:37

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