The Legal Risks of Using Images from the Internet

Today, a digital image is considered a free resource in many parts of the world. You find it on the Internet, you download it, you use it. If somebody objects, maybe you take it down, but nobody really wants to take it further than that. But something fundamental has altered over the last decade. Pictures on the internet are not free. Copyright protects them. Courts will enforce copyright. Detection and enforcement mechanisms are becoming increasingly sophisticated, leading to substantial civil liability for businesses of all sizes. This is what every content creator, marketer and organisation needs to know before hitting the download button.

The International Framework: The Berne Convention and Article 11bis

The foundation of international copyright law is the Berne Convention for the Protection of Literary and Artistic Works (1886, as revised). India has been a contracting party to it since 1 April 1928. The provisions of the Copyright Act, 1957, are substantially similar to those of the Copyright Act, 1957. One provision that is especially worth considering in the digital context is Article 11bis.

Article 11bis(1) of the Berne Convention provides as follows:

• Authors of literary and artistic works shall have the exclusive right to authorise: (i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images; (ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when such communication is made by an organization other than the original one; (iii) the communication to the public by loudspeaker or any analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

Article 11bis was initially introduced for radio broadcasting. However, its scope “communication to the public by any other means” has been interpreted broadly to include digital transmission on the internet, including embedding, posting and sharing of photographs and illustrations. The words signs, sounds or images explicitly denote visual works. To display a picture that is not licensed on a website in public is an unauthorised communication for Article 11bis(1)(i).

This provision grants authors the exclusive right to authorise such acts. This is true for both commercial and non-commercial use, as well as for editorial and decorative use. The rights-holder or an authorised agent acting under their licence is the only person who can lawfully authorise the public display of the work by electronic means.

The Indian Case: Entertainment Network v. Super Cassette Industries

In direct relevance to Article 11bis, the most authoritative judicial consideration of the “communication to the public” right was the landmark decision of the Supreme Court of India in Entertainment Network (India) Ltd. & Ors. v. Super Cassette Industries Ltd. & Ors., Civil Appeal No. 4261 of 2004 (MANU/SC/2179/2008).

In this case, Entertainment Network (India) Ltd, which operates radio stations under the brand name Radio Mirchi, was playing sound recordings owned by Super Cassette Industries (T-Series) without obtaining separate licences from the copyright owners. "We'd be happy with a licence from Phonographic Performance Limited (PPL)," said the broadcaster. The Supreme Court rejected this, making an important distinction between the rights of authors of underlying literary and musical works and owners of sound recordings.

The Court observed that broadcasting of a sound recording by airwaves is a “communication to the public” within the meaning of Section 14 read with Section 2(ff) of the Copyright Act, 1957 and thus necessitates the separate authorisation of each of the different rights-holders in the work being broadcast. The same argument applies just as well to pictures.

If you upload an unlicensed photograph to a website, or embed it in a social media post, or use it as part of a digital advertisement, you are making unauthorized communication to the public, even if the image was already accessible elsewhere on the internet. Under Indian copyright law, it is not a defence to say the work was “already out there” to stop infringement. Each act of communication requires separate authorisation from the rights-holder.

The Getty Images Model: Implementing Enforcement on a Large Scale

Getty Images, the world’s largest stock photography agency, has done more than any other organisation to demonstrate the commercial consequences of unauthorised image use. Its enforcement program exemplifies how copyright in images is policed and monetised on an industrial scale. Getty Images, Inc. v. Stability AI Ltd. Getty Images said that Stability AI scraped and ingested some 12 million images to train its Stable Diffusion AI image-generation model without a license or payment, using Getty-licensed photos, metadata, captions, and watermarks.

Getty alleged direct copyright infringement, removal of copyright management information (CMI) in violation of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1202, and trademark infringement by AI outputs with altered Getty watermarks. In addition to the UK proceedings, Getty also alleged infringement of the database right under the Copyright and Rights in Databases Regulations 1997. This case shows that mass ingestion of images from an internet-facing source without a licence constitutes infringement, even if the images are obtained from that source. Watermarks, licensing terms, and metadata copyright notices embedded in image files are independently protected by law, and their removal or ignoring substantially increases liability.

In addition to this high-profile litigation, Getty Images has had a systematic enforcement program aimed at small and medium-sized businesses for many years. Its automated web-crawling software identifies unlicensed uses of its images and sends demand letters often for amounts between US$750 and US$8,000 per image, citing the statutory damages available under the U.S. Copyright Act (17 U.S.C. § 504(c)). 6. In India, similar remedies are provided under Section 55 of the Copyright Act, 1957, providing for injunctions, damages and an account of profits, and criminal penalties under Section 63, including imprisonment.

Core Legal Risks

The most obvious risk is outright copyright violation. Section 14(c) of the Copyright Act, 1957 provides that the copyright in a photograph shall be the exclusive right to reproduce, communicate, adapt and distribute the work. The de minimis threshold does not apply: one unlicensed image on a commercial website constitutes an infringement. The “I found it on Google Images” position is not a sound legal argument; search engines index images, they don’t license them.

Section 55(2) of the Copyright Act states that the damages shall be reduced where the defendant can prove that he was not aware and had no reasonable grounds to believe that copyright subsisted in the work. But this does not defeat liability, only quantum: With copyright notices, Creative Commons tags and reverse-image search everywhere, the chances of getting away with innocent infringement have plummeted. Any business professional using images on a public-facing website should have done some basic due diligence.

India’s Copyright Act recognises moral rights independently of economic rights (Section 57). The author retains the right of attribution and the right of integrity, i.e. the right to object to any distortion, mutilation or modification of the work, whether or not economic rights have been transferred. Cropping a watermark, applying filters or removing a photographer’s name may therefore give rise to a separate actionable wrong, even if some form of licence existed for the underlying use.

Common Misconceptions That Create Liability

“If it doesn’t have a watermark, it’s free to use.” Watermarks are not a legal requirement; they are a decision. Copyright is automatically vested at the time of creation of an original work (Copyright Act, 1957, Sections 13 and 17; Berne Convention, Art. 5(2): “The enjoyment and the exercise of these rights shall not be subject to any formality”). The absence of a visible watermark does not mean there is no copyright or no need for a licence.

“I'm giving credit to the creator so it's fine.” Attribution is a moral rights requirement, not a licence substitute. It is possible to fully comply with the attribution obligation and still infringe the economic right to reproduce or communicate the work to the public.

“It is for non-commercial use.” Indian Copyright Law does not provide for a blanket exemption for non-commercial use. Narrowly constructed, section 52 of the Copyright Act lists specific fair-dealing exceptions: private use; research; criticism; review and reporting current events. None of these includes decorating a blog, a social media profile, or a company presentation.

“The image was on a free images website.” Free image platforms differ enormously in the rights they actually convey. Some only let you use it for yourself, some require attribution, and some don’t allow commercial use. There are different types of Creative Commons licences, some of which prohibit commercial use (CC BY-NC) or the creation of derivative works (CC BY-ND). Not reading and complying with certain terms of a licence is an offence in its own right.

Safe Practices and Compliance

The safest route is to use only images that are: (a) created in-house or commissioned with a full assignment of rights; (b) licensed from a reputable stock agency with terms covering the intended use; or (c) taken from open repositories such as Unsplash, Pexels or Pixabay after reading and complying with their specific licence terms. Before publishing any third-party image, a reverse-image search (Google Images, TinEye) should be a standard step to identify the rights holder and licensing terms.

For organisations operating at scale, a formal image clearance protocol that sets out approved sources, licence-verification steps, and documentation retention is not just good practice; it is the basis for a “reasonable precautions” defence, which may mitigate damages should inadvertent infringement occur.

Conclusion

The laws concerning images on the Internet are numerous, well-enforced, and increasingly important. Under the Berne Convention, Article 11bis provides that communicating pictures to the public is an exclusive right of the author and requires specific permission. The Supreme Court of India, in Entertainment Network v Super Cassette Industries, reaffirmed this principle with force.

The Getty enforcement model shows that rights-holders have the technology and financial incentives to identify and pursue infringers, regardless of how small or commercially unsophisticated they may be. In a digital world where images are currency, treating copyright compliance as optional is not a calculated risk; it’s an avoidable liability waiting to crystallise. The patent, long filed and forgotten across much of Asia, is being called on to earn its keep, and the photograph, long assumed to be free once posted online, is doing the same.

Author: Jatin Gupta, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

References & Citations:

1. Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971), WIPO

2. Copyright Act, 1957 (India), Sections 13, 14, 51, 52, 55, 57 and 63

3. WIPO Copyright Treaty (WCT), 1996, Article 8

4. Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., MANU/SC/2179/2008; (2008) 13 SCC 30

5. Getty Images (US), Inc. v. Stability AI, Ltd., No. 1:23-cv-00135-UNA (D. Del. 2023); HC-2023-000007 (England & Wales)

6. Digital Millennium Copyright Act (DMCA), 17 U.S.C. §§ 504(c) and 1202

7. Indian Patent Office, Annual Report 2022–23, DPIIT, Ministry of Commerce and Industry

8. WIPO Global Innovation Index 2023: India and Southeast Asia in Focus

9. ASEAN Intellectual Property Rights Action Plan 2016–2025, ASEAN Secretariat

10. Shamnad Basheer and Prashant Reddy T., Journal of Intellectual Property Law & Practice, Vol. 3, No. 7 (2008)

11. Asia Pacific Law Review, Vol. 31, No. 1 (2023); CII IP Committee Report, 2022

12. MeitY, National Deep Tech Startup Policy 2023, Government of India