How to Legally Use Copyrighted Images: Fair Use and Public Domain

To legally use copyrighted images, you need to fit your use into one of four paths: fair use, public domain status, a Creative Commons license, or direct permission from the copyright owner. Every photograph, illustration, and graphic is protected by copyright the moment it’s created, and getting this wrong can cost up to $150,000 per image in statutory damages.¹ Some of these paths are free, some carry conditions, and all of them require you to know which rules apply before you hit publish.

Fair Use

Fair use, codified in Section 107 of the Copyright Act, lets you use copyrighted material without permission under limited circumstances. It is not a free pass. It is an affirmative defense, which means if the copyright holder sues, the burden falls on you to prove your use qualifies. Courts evaluate every case individually by weighing four factors, and no single factor is decisive.²

The first factor looks at the purpose and character of your use. Commercial uses face more scrutiny than nonprofit or educational ones. What really tips this factor in your favor is whether your use is transformative, meaning you have added new expression, meaning, or commentary rather than just substituting the original. A photograph in a critical review, news report, or parody is more likely to qualify than the same photograph dropped into a brochure to sell a product.

The second factor considers the nature of the original. Factual images get less protection than highly creative ones, so a stock photo of a sunset is harder to use without permission than a chart of census data. The third factor examines how much you took. A small crop is more defensible than the whole image, but even a small portion can be too much if it captures what a court considers the heart of the work. The fourth factor asks whether your use harms the copyright holder’s market. If people can get your version instead of buying the original, that weighs heavily against you.²

Because the four factors are weighed together and outcomes are unpredictable, fair use is inherently risky to rely on. When in doubt, license the image or find one in the public domain.

Classroom instruction is a narrower situation with its own rule. Section 110(1) allows teachers and students at nonprofit educational institutions to display copyrighted images during face-to-face instruction as long as the copy was lawfully obtained, without needing a license or a fair use argument.³ The exemption does not cover putting those images on a public-facing website.

Public Domain Images

Public domain images carry no copyright at all. You can copy, modify, sell, and redistribute them without permission or attribution. A work reaches the public domain because its copyright expired, the creator dedicated it there, or it was never eligible in the first place.

When Copyright Expires

The timeline depends on when the image was published and who created it. As of January 1, 2026, all works published before 1931 are in the public domain, because their maximum 95-year copyright terms have run out. For works published between 1931 and 1963, copyright lasted 95 years only if the creator renewed after the initial 28-year term, and many never did, so a large share of that era is also free. For images created from 1978 onward, copyright lasts for the life of the creator plus 70 years, or 95 years from publication for corporate and anonymous works.⁴

Federal Government Works

Works produced by the U.S. federal government, including photographs taken by federal employees as part of their official duties, are not eligible for copyright and enter the public domain immediately.⁵ NASA imagery, National Park Service photos, and military photographs are common examples. State and local government works do not get the same automatic treatment; their status varies by jurisdiction.

Voluntary Dedications

Creators can place their own work in the public domain through a Creative Commons CC0 “No Rights Reserved” dedication, which waives all copyright worldwide.⁶ The Metropolitan Museum of Art has released hundreds of thousands of images under CC0, and the Library of Congress, National Archives, and many open-access museums are good starting points.

AI-Generated Images

The U.S. Copyright Office has taken the position that purely AI-generated images, created without meaningful human authorship, are not eligible for copyright registration. The Office’s 2023 registration guidance and the refusal in Thaler v. Perlmutter established that copyright requires a human author.⁷ Fully AI-generated images likely lack protection, but the law is developing quickly. When a human artist used AI as a tool and made substantial creative choices in selecting, arranging, or modifying the output, those human-authored elements may still qualify. The Copyright Office published Part 2 of its AI report in January 2025 and further guidance may follow.

Creative Commons Licenses

Creative Commons licenses work alongside copyright rather than replacing it. The creator keeps ownership but grants the public advance permission to use the work under specific conditions. Six standard licenses exist, built from four building blocks: Attribution, ShareAlike, NonCommercial, and NoDerivatives.⁸

CC BY (Attribution) is the most permissive. You can copy, modify, and redistribute for any purpose, including commercially, if you credit the creator.
CC BY-SA (Attribution-ShareAlike) adds a requirement that anything you create from the image must carry the same license. Wikipedia uses this one.
CC BY-NC (Attribution-NonCommercial) lets you adapt and share, but not for commercial purposes.
CC BY-NC-SA combines the NonCommercial and ShareAlike restrictions.
CC BY-ND (Attribution-NoDerivatives) lets you share the image, even commercially, only in its original unaltered form.
CC BY-NC-ND is the most restrictive: unaltered image, noncommercial only.

Every CC license requires attribution. Violating a condition, such as using a NonCommercial image in an advertisement, revokes your permission and puts you back in infringement territory.⁸

How to Attribute Properly

Creative Commons recommends the TASL method: Title, Author, Source, License. Include the image’s title if it has one, the creator’s name or specified pseudonym, a link back to the source, and the name of the license with a link to its terms.⁹ A proper attribution might read: “‘Mountain Sunrise’ by Jane Smith, via Flickr, CC BY 4.0.” If the creator asks for a specific format, follow it. Bad attribution can expose you to the same liability as no license at all.

Paying for a License or Asking Permission

When fair use does not apply and the image is not in the public domain or under a CC license, the direct path is to license it or ask.

Start by finding the owner. Most digital photos carry embedded IPTC metadata with a copyright notice, creator’s name, and credit line, viewable through your operating system’s file properties. If metadata has been stripped, a reverse image search through Google Images or TinEye can trace an image to its source. Once you know the creator, contact them in writing and describe exactly how you plan to use the image: where it will appear, for how long, and whether the use is commercial.

Stock photography platforms offer two licensing models. A royalty-free license involves a one-time payment that lets you use the image across multiple projects with no further fees. The name misleads people: royalty-free does not mean free, it means no ongoing royalties after purchase. These licenses are nonexclusive, so other buyers can use the same image at the same time.

A rights-managed license prices the image based on placement, size, duration, print run, and geographic distribution. It costs more, but it can include exclusivity for a defined period so competitors are not running the same picture. Always read the specific terms before you buy, because restrictions like editorial-only use or print-run caps vary by platform and image.

What Happens If You Get It Wrong

Federal copyright law provides several enforcement mechanisms, and copyright holders increasingly use automated tools to find unauthorized uses.

Statutory Damages and Attorney’s Fees

A copyright holder does not need to prove lost money to collect. If the work was registered with the Copyright Office before the infringement began, or within three months of first publication, the owner can elect statutory damages instead of proving actual losses. A court can award between $750 and $30,000 per work, and if the infringement was willful, the ceiling rises to $150,000 per work.¹⁰ If you can show you genuinely did not know your use was infringing, the floor drops to $200, but that argument is hard to win when the image was clearly marked or came from a known photographer.

Timely registration also unlocks attorney’s fees. A court may order the losing party to pay the winner’s legal costs, which in copyright litigation can exceed the damages themselves.¹¹ Without prior registration, the owner is limited to actual damages and profits attributable to the infringement, which are harder and more expensive to prove.¹²

DMCA Takedowns

If a copyright holder finds an image on a website or social platform, they can file a DMCA takedown notice with the host. The platform will remove the content promptly to maintain its own legal safe harbor. If you believe the takedown was a mistake, you can file a counter-notification under penalty of perjury; the platform must then wait 10 to 14 business days and restore the content if the copyright holder does not sue.¹³ Filing a false counter-notice carries federal penalties, so do not submit one without a real legal basis.

The Copyright Claims Board

Not every dispute ends up in federal court. The Copyright Claims Board, housed within the Copyright Office, handles small claims with total damages capped at $30,000 and statutory damages limited to $15,000 per work.¹⁴ It is cheaper and simpler than federal court, but participation is voluntary. If the accused party opts out within 60 days of service, the case is dismissed and the owner has to file in federal court instead. For photographers chasing unlicensed blog posts and social media uses, the CCB has become a practical tool, and anyone using images without proper licensing should know it exists.

1
U.S. Copyright Office. Copyright in General (FAQ)
2
Office of the Law Revision Counsel. 17 USC 107 – Limitations on Exclusive Rights: Fair Use
3
Office of the Law Revision Counsel. 17 USC 110 – Limitations on Exclusive Rights: Exemption of Certain Performances and Displays
4
Duke University School of Law. Public Domain Day 2025
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Office of the Law Revision Counsel. 17 USC 105 – Subject Matter of Copyright: United States Government Works
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Creative Commons. CC0 1.0 Universal – Deed
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U.S. Copyright Office. Copyright and Artificial Intelligence
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Creative Commons. Creative Commons Licenses
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Creative Commons. Recommended Practices for Attribution
10
Office of the Law Revision Counsel. 17 USC 504 – Remedies for Infringement: Damages and Profits
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Office of the Law Revision Counsel. 17 USC 505 – Remedies for Infringement: Costs and Attorneys Fees
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Office of the Law Revision Counsel. 17 USC 412 – Registration as Prerequisite to Certain Remedies for Infringement
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Office of the Law Revision Counsel. 17 USC 512 – Limitations on Liability Relating to Material Online
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Copyright Claims Board. Frequently Asked Questions