Gavel & Glass Briefing - Can Your Association Use Images Found Online? Copyright Risks to Know

Associations and nonprofit organizations are receiving cease-and-desist letters and monetary demands over photographs used on websites and social media without permission. Some demands also raise issues under the Digital Millennium Copyright Act (DMCA).

The central point is straightforward: an image’s availability online does not make it free to use. A useful risk-management question before posting an image is whether the organization owns it or has documented permission to use it. If permission cannot be verified, removing the image from public view while keeping relevant records may reduce the risk of continued use.

What Copyright Protects—and Why Online Use Matters

Copyright generally begins when an original work is created and recorded in a form that can be seen, read, heard, or reproduced. Registration is not required for copyright to exist, but it gives the owner important advantages when enforcing those rights. A copyright owner generally controls who may copy, share, modify, or publicly display the work. Posting a photograph online can affect these rights. 17 U.S.C. § 106 (2018).

Finding an image through a search engine, receiving it from a member, or seeing it on another website does not necessarily include permission to post it elsewhere. Any license or written permission must cover the planned use and any conditions, such as where the image may appear or whether credit is required.

Three Common Misconceptions About Online Images

The terms and charges in a master agreement vary by venue and transaction. Before signing, associations may wish to determine whether the agreement and related fee schedules clearly address the following areas.

1. “It was on the internet, so it was fair game.”

Incorrect. Public availability does not mean permission. “Fair use” is a narrow exception that depends on the specific circumstances. It does not automatically apply because content is used online, for education or information, or by a nonprofit. Courts consider why and how the work was used, the type of work, how much was used, and the effect on the market for the original. 17 U.S.C. § 107 (2018). Using an entire photograph merely to illustrate a webpage, event, article, or social-media post should not be assumed to qualify as fair use.

2. “Removing the photograph resolves the demand.”

Not necessarily. Removal may stop continued public use and may reduce risk, but it does not automatically eliminate responsibility for earlier use.

For claims that meet the legal requirements, a copyright owner may seek damages set by law without proving the exact financial loss or gain. The ordinary range is $750 to $30,000 per infringed work, with up to $150,000 per work if the infringement is proven to have been intentional. 17 U.S.C. § 504 (2018). Whether these set damages and attorney’s fees are available depends significantly on when the work was registered. 17 U.S.C. § 412 (2018).

3. “The photograph was posted a long time ago, so a claim can no longer be made.”

Not necessarily. Copyright claims are subject to time limits, but determining when those limits begin and end can be complicated. A lawsuit generally must be filed within three years after a claim begins. However, later uses of the same photograph—such as keeping it online, posting it again, or distributing new copies—may raise separate timing questions. 17 U.S.C. § 507(b) (2018). Courts may also consider when the copyright owner discovered, or reasonably should have discovered, the use. See Petrella v. Metro-Goldwyn-Mayr, Inc., 572 U.S. 663, 671–72 (2014); Warner Chappell Music, Inc. v. Nealy, 601 U.S. 366, 370–73 (2024). The fact that an image was first posted years ago does not, by itself, establish that a claim is too late.

Copyright Infringement and DMCA Claims Are Different

Using a photograph without permission may violate the copyright owner’s rights. A DMCA allegation may raise a separate issue: whether someone knowingly removed or changed information identifying the work or its owner, such as the owner’s name, usage terms, watermark, or other identifying details. 17 U.S.C. § 1202 (2018).

The appearance of “DMCA” in a demand does not itself establish liability. Each demand requires a review of what is alleged, the supporting evidence, who owns the image, whether and when it was registered, whether permission existed, and whether any defenses apply.

Practical Ways to Reduce Copyright Risk

Organizations may wish to consider the following general practices:

• Review digital content. Include websites, social media, newsletters, event pages, publications, archives, and vendor-managed platforms.

• Document permission to use images. Retain licenses, written permissions, source information, invoices, expiration dates, and credit requirements.

• Address questionable images. If permission cannot be verified, removing the image from public view may reduce the risk of continued use. Keep an internal copy and related records.

• Protect ownership information. Do not remove or change watermarks, credits, embedded file information, or other ownership details without permission.

• Use verifiable sources. Examples include organization-owned content, properly licensed stock images, commissioned photography governed by written agreements, and verified public-domain materials.

• Check submitted content. Require staff, volunteers, members, speakers, contractors, and vendors to document permission before an image is published.

A demand requires review based on the organization’s specific circumstances. Before responding, admitting fault, discussing payment, or deleting or changing records, an organization should consult its own counsel about deadlines, keeping relevant evidence, notifying an insurer or vendor, permission records, possible defenses, and potential financial exposure.

Why Associations Should Consider Registering Their Own Content

Associations also create valuable photographs, publications, training materials, graphics, videos, research, and conference content. Timely registration may create a public record, satisfy the general requirement that a United States work be registered before an infringement lawsuit is filed, preserve access to certain legal remedies, and strengthen enforcement and licensing options. See Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296, 299–300 (2019).

Registration does not resolve ownership by itself. Written agreements may help clarify rights when employees, contractors, photographers, speakers, members, or vendors create or contribute content.

Key Takeaway

Online availability alone does not establish a right to use an image. When usage rights cannot be documented, declining to post the image—or removing it from public access while preserving relevant records—may reduce infringement risk.

Disclaimer: The information contained in this article is provided for educational and informational purposes only and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state.