To many people and businesses, the internet has become the place to go for images. After all, with websites posting big, beautiful images and sites like Google Images and Twitter offering a plethora of photos, it’s easy to right-click on an image and save and use on your Facebook page or company website.
But before you right-click and save, have you done your homework to make sure it is OK to use the image? Most images on the web are copyrighted. Copying the image and using it without permission is against the law and can get you in big trouble. Copyright is the legal protection extended to authors or owners of original published and unpublished artistic and intellectual works. In the United States, a copyright “grants the author exclusive rights to make copies of the original work, to make ‘derivative works’ that vary from the original, and to publicly perform, display or transmit the work.”
If your company engages in the practice of using photos without permission – or has from time to time “borrowed” images from other sites – you are putting your company at risk of copyright infringement and perhaps in violation of one or more sections of the Digital Millennium Copyright Act (DMCA). According to attorney Gaida Zirkelbach of Gunster, Copyright infringement carries hefty “actual damages,” including profits from wrongful usage of images and “statutory damages” of up to $30,000 per image (or up to $150,000 per image if the infringement is willful), plus legal fees. The DMCA provides for minimum statutory damages of “not less than $2500 or more than $25,000 for each violation.”
Take for example, a copyright infringement case brought about by photographer Daniel Morel against stock image house Getty Images, Agence France Presse (AFP) and The Washington Post. According to attorney Oscar Michelen at courtroomstrategy.com, a New York judge ruled that Getty Images, Agence France Presse (AFP) and The Washington Post infringed on Morel’s copyrights “by disseminating photos he took of the 2010 Haitian earthquake without his permission. More significantly, the judge rejected the news organizations’ affirmative defense that Morel granted them a license to use the photos by posting them on Twitter.”
According to courtroomstrategy.com, Morel is a native of Haiti and a professional photographer who was there when the quake struck. According to the site, with all lines of communication destroyed in his region, all he could do was post 13 pictures via TwitPic, a service of Twitter. A Twitter user in neighboring Dominican Republic re-tweeted them and they spread over the internet, without any credit being given to Morel, though the Twitter trail could have been followed if anyone was really interested in seeing who originally posted the pictures. Getty then disseminated them to news outlets including The Washington Post without any accreditation or attempt to find the photographer responsible for the breathtaking images. Morel later got credit for his work, winning two World Press Photo awards.
The article goes on to say that when he contacted AFP about its infringement of his images, AFP filed suit seeking a declaratory judgment that they had not infringed on his copyright, presumably because he had posted them on Twitter. Morel filed a countersuit against AFP and also named Getty and the Post.
“The copyright law governing this case is pretty clear. The person who takes the photo has the copyright and anyone making a commercial use, even a derivative use, of the image is liable for copyright infringement,” wrote Michelen. “The court in this case set down Feb. 1, 2013, for a court appearance to set a date for an evidentiary hearing on whether the infringement was willful and for a determination of damages. I smell a settlement here (somewhere in the millions) as the defendants will look to cut their losses.”
In another case, copywriters at Webcopyplus.com ended up paying a $4,000 settlement for a digital photo they “grabbed from the web” and posted on a client’s tourism blog. “We screwed up. It’s an expensive lesson on copyright laws that we wish to share with other marketers, so you don’t make the same mistake,” the website says. “Our web copywriters were under the impression that images on the web without any copyright notices were ‘public domain’ and therefore free to use. Naive? Yes. A notion limited to our copywriting firm? Definitely not.”
Is it worth it to put your company at risk for a photo? As online content sharing continues to evolve, photographers are taking infringement very seriously. It’s a myth to think that all you have to do is adhere to a cease and desist letter and remove the image from your site[s]. A cease and desist letter is step one in notifying your company that you are in violation. It’s also a myth to think that removing the image negates the fact that it was used without permission. Another word of caution: be sure you read the fine print when it comes to websites that say their images are “royalty free.” Royalty free refers to the right to use copyrighted images without many restrictions based on a one-time payment to the licensor. You will find royalty free images at sites like iStockphoto, Freerangestock and Shutterstock. Understand your responsibility in using these images.
So let’s say your company is caught using an image without permission and you receive a cease and desist letter from an attorney or the photographer. What do you do? First, take the images off your site. Next, make your attorney aware of the claim and reach out to the parties responsible for selecting the image. You will want to know where they found it, if they had permission to use it, proof of permission, etc. Lastly, respond. The goal for both sides is to resolve the case in a professional, collaborative business-to-business manner. Most often, you may be able to stave off a trial by reaching a settlement with the photographer that covers a licensing fee for the time you used the photo.
No matter who is responsible for choosing and approving the images that are posted on your company website and social media pages, the business is ultimately responsible for the content placed. Your staff needs to always assume that the images found online are copyrighted, even if they don’t have a copyright symbol (©) or legal text indicating so. Be smart and save your company the time and money that you will pay in legal fees and liability damages by getting permission first.