Good grief, not my website! Claims for unauthorized use of a web image
We have been hearing reports of some small business websites including newspaper websites receiving letters from alleged copyright reps/owners claiming that the sites have posted unauthorized images. These letters have in the past typically been sent from large companies purveying stock images, in particular Getty Images, but recently other claimants have joined the action (e.g., adlife and their legal representatives, etc.) and this has become a sort of cottage industry by certain sectors of the plaintiffs’ bar.
Typically the stock image company operates on behalf of the photographer who actually owns the copyright, and who has placed their images on the company’s site (for a fee) for sale to the public. The company sells the image on behalf of the owner with use restrictions dependent on and priced according to the type of licensed volume and subscription plan (for instance, for use on a website, but not in advertisements).
The image company uses “spiderbot” or “crawler” software programs to monitor images on the internet, searching for unauthorized use of the images it manages/owns. If an unauthorized use is found, a letter is sent to the website owner, usually with a copy of the catalogue image and the screen capture image attached and a monetary demand for each image.
The letters take advantage of the fact that images and content are easily copied and pasted by users (especially from social media sites), so much so that users sometimes forget that each work is someone’s copyrighted material. How common is it to hear offhand remarks that since images are reproduced in any format one wishes, who really can know who owns what? This is compounded by the common (but mistaken) belief by users that copying photos onto their websites is “fair use” as long as they aren’t making money off them.
Contrary to these sentiments, these acts are in fact technically infringements, and the copyright law is one of strict liability where “accidental” or “unintended” use is not a complete legal defense (although it can mitigate damages). While such “limited” use traditionally has not been targeted with a lawsuit (a simple letter from the holder asking for removal of the infringing work was typically sufficient), the legal environment has changed, and these letters frequently demand hundreds of dollars for such use.
Many blogs/websites complain about these business tactics and offer advice, some of it helpful, some contradictory (e.g. http://kelleykeller.com/the-getty-images-demand-letter-fighting-the-copyright-bully/).
Here is a short list of take-away items a newspaper might consider to lessen the chance of receiving such a letter or action that might be taken to mitigate the effects if one is received.
First, it is important to initially take steps in line with the old saying: “to be forewarned is to be forearmed.” In this case that means putting in place policies and/or training for any person (employees, interns, and/or contractors) uploading or otherwise managing images on your website in order to limit unauthorized activity.
The basic rule of thumb is quite simple: don’t use images for which there is no copyright ownership or a license for its use. Follow that rule and it is highly likely the newspaper will not have a problem. Of course, there will be times when following the rule may raises questions. For example, aren’t there intrinsic protections for the use of an image based on “fair use”? This is a valid question, but keep in mind fair use is a vague term and is based on the weighing of several factors, thus making its applicability notoriously hard to predict—at least before a court actually weighs in on the matter. Also, if the image is provided on a website that provides images free from copyright for commercial use without any payment being required, can’t the image be used? Perhaps, but before doing so be sure to confirm this is clearly stated on a trusted and legitimate site.
As you can see, while exceptions exist, they must be used judiciously, and the rule of thumb is still a good place to start.
Also, keep in mind that even though a graphic design company creates the web or ad content, the newspaper can still be held responsible. As the ultimate owner of the website promoting of the ad, the copyright owner could still pursue the newspaper. Of course you would be well within your rights to sue your designers, but it will entail a lot of cost and a great deal of hassle.
Second, and aside from defensive measures, what is recommended if by chance you actually receive a demand letter? First, and foremost, before responding, make sure the image is removed. This may not end any potential liability but does help establish good faith and limited use and supports the innocent user defense. Courts have held that immediate cessation of use upon notice can constitute adequate redress. Further, courts are unlikely to award more than a minimal amount per instance in cases where there is innocent infringement (as statutory damage will likely be a non-factor).
Research carefully the use of the images in question and determine how they came to be used, whether permission exists, and if not, the duration and type of use. You can check into the pricing of the images to help determine fair market value, including use of similar images on promotional websites (e.g., depositphotos, dreamtime stock images, etc.).
There are a number of other suggestions that could be useful in responding, including asking for proof that the stock image company actually has the right to manage the image in question, proof of proper copyright registration (not necessary to claim the copyright but relevant to limiting damages and actually bringing suit), the chain of title for the image, the calculation to determine the current sales price, providing sales data for the image, etc.
Hopefully, the case will end with this rebuttal, but likely it will not and you might receive additional demands. While, frankly, the chances of being sued in these limited use situations is not very likely–litigation is time-consuming and expensive–the claimants can make your life miserable with further claims and communication, and it may be worth settling for some reasonable amount to make them “go away.” If and for what amount will of course depend on the specific circumstances of the use.
Feel free to contact Sam if you get one of these letters.