Can You Use Content Found Online

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What businesses, marketers, designers and creatives need to know about copyright law in the age of social media, Pinterest and artificial intelligence

The internet has transformed the way businesses create, market and communicate. Whether preparing a website, designing a new brand identity, developing a social media campaign or creating a mood board for a client, businesses now have access to an almost limitless collection of photographs, illustrations, videos, graphics, articles and other creative content from around the world. Platforms such as Pinterest, Instagram, TikTok and LinkedIn have become valuable sources of inspiration, while artificial intelligence tools can generate images, text and design concepts within seconds. However, while technology has made creative content easier to access than ever before, it has also given rise to a common misconception that material available online is somehow free to use. In practice, this assumption can expose businesses to significant legal risk.

Many copyright disputes arise because a business owner, designer, marketer or content creator genuinely believed they were entitled to use material that was publicly available on the internet. A photograph found through a Google search may be copied onto a website. Images downloaded from Pinterest may be incorporated into a marketing presentation. A social media post may be reposted without permission. A logo may be developed after viewing a competitor’s branding. In each of these scenarios, copyright issues may arise notwithstanding the fact that the content was easily accessible online. The mere availability of material on the internet does not place it into the public domain and does not automatically grant permission for others to reproduce, publish, communicate or adapt it.

Copyright protection in Australia arises automatically under the Copyright Act 1968 (Cth). Unlike trade marks, there is no system for registering copyright. Protection generally subsists as soon as an original work is created and expressed in material form. Depending on the circumstances, copyright may protect literary works, artistic works, photographs, films, sound recordings, software, databases and a wide range of other creative outputs. The owner of copyright is granted a bundle of exclusive rights, including the right to reproduce the work, publish it, communicate it to the public and authorise others to do those acts. Sections 31 and 36 of the Copyright Act 1968 (Cth) are particularly important because they define the exclusive rights comprising copyright and the circumstances in which infringement may occur.

One of the most frequently misunderstood aspects of copyright law is that copyright protects the expression of ideas rather than the ideas themselves. This distinction has been recognised repeatedly by courts in Australia and overseas. A person cannot obtain a monopoly over a general concept, style, theme or artistic approach. If copyright protected ideas themselves, it would become almost impossible for innovation to occur. Instead, copyright protects the particular way in which an idea has been expressed. For example, a designer may draw inspiration from Scandinavian interiors, Art Deco architecture or a minimalist aesthetic without infringing copyright. Difficulties arise where the resulting work reproduces a substantial part of another person’s original expression. As the High Court observed in IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14, copyright law does not reward labour alone but protects the original intellectual effort embodied in a work.

This distinction between inspiration and reproduction has become increasingly important in the digital age. Creative professionals routinely gather inspiration from online sources. Interior designers create mood boards. Fashion designers compile collections of images to explore colour palettes and silhouettes. Graphic designers review existing branding before commencing a project. Marketing agencies collect examples of successful campaigns. None of these activities are inherently unlawful. However, where the line between inspiration and reproduction becomes blurred, copyright issues can arise. A mood board containing third-party photographs may be relatively low risk when used internally for brainstorming purposes, but the legal position may change if those same images are reproduced in commercial presentations, advertising material or on a publicly accessible website.

Another misconception that continues to circulate is the so-called “10 per cent rule”. Many people believe that changing a work by ten per cent, twenty per cent or some other arbitrary figure will avoid copyright infringement. There is no such rule under Australian law. Courts do not determine infringement by measuring how much of a work has been copied in numerical terms. Instead, the relevant inquiry is whether a substantial part of the original work has been reproduced. Importantly, substantiality is assessed qualitatively rather than quantitatively. A relatively small component of a work may constitute a substantial part if it embodies important or distinctive features of the original creation. Conversely, a large amount of material may be copied without infringement if what has been taken lacks sufficient originality. The High Court’s decision in IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14 remains one of the leading authorities on this principle and confirms that the focus is on the quality of what has been taken rather than its quantity.

Copyright ownership is another area that frequently causes confusion, particularly in commercial contexts. Businesses often assume that if they have paid for a logo, website, photograph, article or other creative work, they automatically own the copyright. In many circumstances, this assumption is incorrect. Subject to limited exceptions, independent contractors and freelancers will generally own copyright in the material they create unless ownership is assigned in writing. This can create significant difficulties years later when a business seeks to update branding, license intellectual property, expand into new markets or sell the business. For this reason, intellectual property ownership clauses are often among the most important provisions in creative service agreements.

The rise of social media has added another layer of complexity. Businesses frequently repost photographs, videos and user-generated content as part of their marketing strategy. While reposting may seem commonplace, copyright law continues to apply online. Permission may still be required even where content has been publicly shared by its creator. Similarly, influencers and content creators should be aware that ownership of photographs, videos and other material may not always be straightforward, particularly where photographers, videographers, agencies or commercial clients are involved. In addition to copyright, moral rights under Part IX of the Copyright Act 1968 (Cth) may also be relevant. These rights include the right of attribution and the right not to have authorship falsely attributed, and they can exist independently of copyright ownership itself.

One particularly interesting aspect of copyright law is the concept of unconscious copying. Many people assume that infringement requires deliberate copying. However, courts have long recognised that copyright infringement can occur even where a person had no intention of reproducing another work. In Francis Day & Hunter Ltd v Bron [1963] Ch 587, the court accepted that copying may occur unconsciously where a person has had access to an earlier work and sufficient objective similarity exists between the two works. In practice, this means that a designer, musician, writer or artist may genuinely believe they have independently created something original, only for a court to conclude that an earlier work has influenced the final product. In an age where people are exposed to enormous amounts of content every day, this principle remains highly relevant.

The emergence of artificial intelligence has created further uncertainty. Businesses are increasingly relying on AI tools to generate written content, images, videos and software code. While these technologies offer significant opportunities, they also raise complex questions about originality, authorship, ownership and infringement. Australian law has traditionally required human authorship for copyright protection, as illustrated by decisions such as Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149. As AI-generated content becomes more prevalent, businesses should carefully consider both the ownership of AI-generated outputs and the possibility that those outputs may inadvertently reproduce existing copyright material.

Where copyright infringement occurs, a range of remedies may be available. These can include injunctions restraining further use of the material, damages, an account of profits and, in appropriate circumstances, additional damages under section 115 of the Copyright Act 1968 (Cth). Additional damages may be awarded where the infringement is flagrant or where the conduct of the infringer warrants a greater deterrent response. The financial and reputational consequences of infringement can therefore be significant, particularly for businesses that rely heavily on branding, marketing and digital content.

Copyright should not merely be viewed as a source of legal risk. For many businesses, it is one of their most valuable commercial assets. Websites, articles, photographs, videos, training materials, software, designs, marketing campaigns and social media content often represent substantial investments of time, expertise and money. Understanding copyright law allows businesses not only to avoid infringement but also to identify, protect and commercialise the intellectual property they create.

Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.