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I found a desktop wallpaper on the web that i would like to use for commercial work. I am interested in using about 30% of this image, but I am not sure if it is legal.

I googled a lot and there is no information about this picture to be found, such as photographer, or any stock site that sells this picture. Given that this picture is used all over the web, I suppose that this image is free to use, but I am not sure. Is there any regulation that handles these "download for free wallpapers" and explains the legitimate use?

  • He says he wants to use 30% of the image, and I sense that he intends to modify it for use as part of a larger composition, but none of the answers address whether that may be fair use. Maybe someone could address that? – Aaron Hall Oct 22 '15 at 13:56
  • If its all over, it might be useful to post somewhere so that maybe someone recognized it and maybe knows more. – PlasmaHH Oct 22 '15 at 15:28
  • If you're in the UK (maybe the EU?), there is the concept of Orphan Works - you may or may not agree with them, but it's now the law... – James Thorpe Oct 22 '15 at 15:39
  • A link to a copy of the image may be useful (and would probably be interesting). – Russell McMahon Oct 22 '15 at 19:30
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    It's been mentioned already but I think it's worth emphasizing that "Given that this picture is used all over the web, I suppose that this image is free to use" is not correct. – David Z Oct 23 '15 at 5:14
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In general, the rule is simple: if you don't know you have the right to use an image, don't use it. It doesn't matter if it's all over the web, it could still be you that the copyright holder decides to sue - whereas with trademarks, it can be the case that if you don't defend the trademark, it can be deemed to have become "generic", nothing like that applies to copyright.

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    "It doesn't matter if it's all over the web, it could still be you that the copyright holder decides to sue." And using the image commercially makes that more likely. It's perfectly possible that the copyright owner is happy for their image to be shared but will go after people who use it commercially. – David Richerby Oct 22 '15 at 9:27
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    I know people who had to pay fines for using an image that was all over the web. With popular images, sometimes a picture agency tracks down the creator after it became popular, buys the rights and then starts to collect money from everyone using it. So don't ever use any image where you are not sure you have the rights to do so and keep all the documentation proving you have them! – Josef Oct 22 '15 at 9:35
  • For example, a german website got a cease and desist from Getty Images for using the awkward penguin mime, see dailydot.com/politics/… – magnetometer Oct 22 '15 at 12:19
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    Another example: The original creator of the famous "trollface" drawing is suing people left and right who use it commercial without permission. – Philipp Oct 23 '15 at 15:11
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Creative works are automatically protected by copyright law. You don't have to register the work, put a copyright symbol on it or anything. By default, nobody can copy it (except for fair use). That means that if you see some creative work on the web and it is not accompanied by a copyright license or public domain waiver you pretty much by definition do not have a legal right to copy (or rather distribute) it, commercially or otherwise.

This is why photo sharing sites etc. always ask for so many rights to your works, which sometimes gets mistaken for nefarious schemes to steal your work. They have to, otherwise they can't legally do anything publicly visible with your photos.

To use something you found on the web legally in a commercial setting it needs to be 1) public domain, or 2) accompanied by a copyright license that allows commercial use, such as a Creative Commons license without the NonCommercial clause, or 3) the copyright owner needs to explicitly give you permission.

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    @DavidRicherby Yes they do. Thumbnails, and possibly even reencodings or recompressions, of your photos are derivative works. – Pepijn Schmitz Oct 22 '15 at 15:47
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    Then why doesn't the TOS explicitly limit Y!'s derivative work license to something to the effect "automatic transformations necessary to present your photos, such as cropping, resizing, and format conversion"? It ought to be analogous to the exception in 17 USC 117(a)(1) for adaptation of computer programs. – Damian Yerrick Oct 22 '15 at 16:36
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    @tepples To keep it short? To avoid limiting their options when they want to add new features to the site? Plenty of legitimate reasons, I'm not sure why so many people are certain that Yahoo!, a billion dollar company which stands to lose huge amounts of reputation and goodwill, is out to steal their photos... – Pepijn Schmitz Oct 22 '15 at 16:42
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    @PepijnSchmitz Yahoo's terms and conditions are approximately 30kb of text. "Keeping it short" doesn't seem to be the priority. – David Richerby Oct 22 '15 at 17:48
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    @DavidRicherby Then maybe the other possibility I mentioned, which you seem to have missed? Anyway, this isn't what the comments are for. The question was about copyright, not about Yahoo!. If you want to keep discussing it, please take it to chat. – Pepijn Schmitz Oct 22 '15 at 17:52
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It is certainly the case that unless the copyright is specifically granted to you by the author, it is automatically retained by author. The author does not have to register his copyright, he does not have to mark the image, he does not have to be aware of the law at all. Technically, if you use it, you are infringing.

On the other hand, what is going to happen? 999 times out of a thousand, nothing. The thousandth time, you will get a firmly worded "cease and desist" letter from his attorney, and you better cease and you better desist if you know what is good for you.

Is that such a bad thing? If you have to apologize and go find another image for your website, maybe it is worth it. If you have to recall and destroy a whole bunch of printed matter, or reshoot a scene for a movie, or something like that, probably not.

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    Morally we cannot condone the second part of your answer which suggest that stealing is 'worth it' when it is am infringement on the rights of the artist who created the work. – damned truths Oct 23 '15 at 4:00
  • Stealing is morally wrong when it deprives someone of something that is his, and which he wants. You trespass on people's property when you go to knock on their door; you appropriate water when you drink from a fountain. You don't feel bad about doing those things because you know that 99.9% of the time, the rightful owner won't mind. This is the same: in the unlikely case the rightful owner doesn't want you to use his property, he will tell you. – Malvolio Oct 23 '15 at 9:24
  • I would bet that there are exceptions in law for knocking on peoples doors, and if it is a public fountain then the water is publicly owned and so is by extension owned by anyone who pays their taxes. It is also far more equivalent to compare the stealing of a photograph with the stealing of a physical artwork (such as a lino print, if only for the repeatability) – damned truths Oct 23 '15 at 11:21
  • It isn't all like stealing a physical artwork. If you steal anything physical, you necessarily deprive the owner of it. In this circumstance, you typically deprive the owner of nothing, and in the rare case you do deprive him, he will tell you, and the harm can be undone. Drinking at a water-fountain isn't legal because you pay your taxes, it's legal because you (reasonably) believe that the owner is OK with it – Malvolio Oct 24 '15 at 2:21
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    @MarchHo In this case I am talking about people who take photographs for art or business (e.g. professional photographers etc.). By not using a licence it should be considered that they have explicitly decided to not allow the use of the image, rather than assuming that they do not care. In fact assuming the latter deprives the photographer of the right to control their work. – damned truths Oct 26 '15 at 1:02

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