[TigerC10]

Technically, yes, you could get into legal trouble for using someone else's artwork without their permission. Is it something that will land you in a court of law? Probably not. Will you get a fine? Probably not.

Most likely if the original artist (or some representative) catches you, they'll send a threatening e-mail telling you to discontinue using the smilie. If you comply that should be the end of it. If you don't comply, they could send an abuse report to your host - and most hosts will shut your site down if they recieve certain types of abuse reports (though I've never heard of anyone getting shut down for smilie copyright infringement). Generally these hosts will have your site turned off until you contact them and promise to resolve the issue - the hosts will turn it back on to let you fix the problem.


Anyway, you should do your absolute best to contact the creator of the smilies you want to use. Just because someone is using them, doesn't mean that they created them or hold rights to them. It's also nice to put a note in your FAQ or make a news post saying "New Smilies created by _____" to give the artist the appropriate credit. But to be perfectly honest, if you can't contact the artist I don't think they're going to care if you use it or not.