Can we use a photo we found online on our website?

Nothing has to be marked for it to be owned

Start here, because almost every bad decision about images comes from the opposite assumption.

The Copyright Office states the moment protection begins: "Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device."

The moment it is created. Not when it is published, not when it is marked, and not when anybody is told.

Registration is a separate thing entirely: "In general, registration is voluntary. Copyright exists from the moment the work is created."

Put those together and the practical rule falls out. A photo with no symbol, no credit, no watermark and no visible owner is in exactly the same position as one with all four. The absence of a mark tells you nothing at all about whether the image is owned, because nothing about ownership depends on marking.

This is why searching for images and judging by what looks unclaimed does not work. You are reading a signal that was never being sent.

The same reasoning applies to the thing people reach for next. Crediting the photographer is good manners and it is not permission. Nothing in how protection begins says that naming the owner creates a right to use the work.

What copyright does not cover is narrower than it sounds

There is a real boundary here, and knowing where it sits saves arguments in both directions.

The Office describes the scope plainly: "Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture."

And then the limit: "Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed."

The regulations put the same boundary in a list. Under 37 CFR 202.1, "The following are examples of works not subject to copyright and applications for registration of such works cannot be entertained", and the first item covers "Words and short phrases such as names, titles, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents".

So a slogan is not owned the way a photograph is. Neither is a plain list, nor a common symbol. The second item is the one that matters for anybody building a website, because it draws the line precisely: "Ideas, plans, methods, systems, or devices, as distinguished from the particular manner in which they are expressed or described in a writing".

Read that as the useful rule it is. The idea of a photograph of a smiling person holding a coffee cup belongs to nobody. That particular photograph belongs to whoever took it.

Which means the answer to a competitor's good page is to have the same idea and your own execution. That is permitted, cheap, and better anyway, because a copied asset makes you look like everybody else who copied it.

Fair use is judged afterwards, not applied in advance

This is the part that gets businesses into trouble, because fair use is widely described as if it were a rule with a threshold.

The Office is explicit that the law names factors rather than a test you can pass: "Section 107 calls for consideration of the following four factors in evaluating a question of fair use".

Then the sentence that should end the percentage conversation permanently: "Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry."

And the consequence, stated outright: "This means that there is no formula to ensure that a predetermined percentage or amount of a work" may be used without permission.

There is no ten percent. There is no thumbnail exception. There is no safe number of seconds, words or pixels. Anybody who tells you otherwise is describing a rule that the Office says does not exist.

One genuine nuance is worth carrying, because it is the factor most often misunderstood in your favour and against it. The Office notes that "Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work."

Substitute for the original use is the phrase to sit with. A stock photograph exists to be placed on pages exactly like yours. Putting it on your page is the original use, not a new one, which is why decorating a commercial site is the weakest possible position to argue from.

Registration does not create the right, but it decides what can happen next

Here is the mechanism behind the letters that arrive months later, and it explains why they come from some owners and not others.

Protection needs no registration. Enforcement is different: "You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work".

So registration is the step an owner takes when they intend to be able to sue. Organisations whose business is licensing images register as a matter of course, which means the images most likely to be found, used casually and pursued later are the same images.

That also explains the timing that surprises people. Nothing happens for months, then a letter arrives about a photo somebody added long ago and nobody remembers choosing.

What to do if that happens is a question for a lawyer, not for us, and the honest thing is to say so rather than offer comfort we cannot back. What we can say is that the cheapest moment to deal with this is before the image goes up.

What to check, in order

Five checks, and every one of them is free.

• List every image on your site and write down where each one came from. Most businesses cannot do this, and the ones that can resolve a complaint in an afternoon instead of a fortnight.
• Treat unknown provenance as unlicensed. Absence of a watermark is not evidence of anything, because marking was never what created the right.
• Keep the licence, not just the file. A licence is the evidence that you were allowed, and it lives in an email or an account rather than in the image.
• Check what your own contractors used. A designer or agency choosing an image does not transfer a right you never received, and the site owner is the one whose page it appears on.
• Prefer images you commissioned, bought under a licence you can produce, or made yourself. The ordinary cost of a licensed image is small next to the cost of establishing whether one was needed.

Keeping a record of where each asset came from, and using images that can be shown to be licensed, is part of what we do when we build and look after a site.

Sources

• Copyright in General (FAQ, U.S. Copyright Office)
• Fair Use Index (U.S. Copyright Office)
• 37 CFR 202.1, Material not subject to copyright (eCFR, U.S. Copyright Office)

Last reviewed 2026-09-12.