We spoke with Scott Smedresman, an attorney with SorinRand who concentrates his practice in corporate technology transactions and intellectual property-related agreements, about the infamous "Getty Images Unauthorized Use" letter that many small businesses and websites are getting in the mail. Scott speaks with us about copyright and legal issues surrounding image and photography selection for websites.
COPYRIGHT IMPLICATIONS OF SELECTING IMAGES
The days of static websites with text are long over. Nowadays, websites are commonly chock full of graphics, videos and images meant to create a more pleasurable user experience. Images are frequently added to companies’ Facebook and other social network pages. Many business people, however, don't consider the copyright implications of selecting images for publication, and it may result in legal exposure or the receipt of increasingly common unauthorized use notification letters from photo agencies.
WHEN COPYRIGHT LAW APPLIES
Although it may not be top of mind when launching a website, copyright law automatically protects nearly all images you might come across online. That means unless it is specifically identified as being free, it must be licensed to be used. Pictures you might find through a Google Images search are not "public domain" or free to use just because they are available online and easy to copy and use. Similarly, designations like "royalty free" are not the same as free - they generally mean that no ongoing fee is due, but an initial, one-time fee is required.
WEBSITE OWNERS, TAKE NOTE!
Take notice, because copyright owners certainly are. There is an increasing trend where photo agencies and clearing houses scan the web for images they own or license, looking for websites that may be using the photos without paying the license fees. Software can identify an image even if it is deep on your website off the homepage. Facebook pages can be reviewed as well. When an alleged infringer is identified, a letter is sent noting the unauthorized use and asking for a settlement fee to avoid a legal dispute. The fee can range from a few hundred dollars to in the thousands of dollars.
If you receive a letter, don't ignore it assuming it is a scam; the letters can be legitimate demands. Check to see who it is from and if your image is really the same as the one the agency claims to own, because false positives do sometimes occur. If you are using an image claimed to be owned by someone else that you haven't paid for, save your records and consult with your lawyer about the most appropriate response.
REMOVING A IMAGE IS THE FIRST STEP, NOT THE LAST
Removing the image may be advisable; however, just removing the picture does not mean that legal liability for the past posting is eliminated. You can still be pursued even if you have stopped using the picture. In addition, intent is not relevant to legal liability for copyright infringement, so even if you didn't know that the image was under copyright and didn't mean to infringe, or even if your web developer posted it, you can still be held responsible.
TROUBLE WITH IMAGES
This sounds bad, but with some advance planning, you can avoid this kind of mess. Always make sure an image is free for use before posting it to your website. There are search tools available, such as on Flickr (http://www.flickr.com/creativecommons/) for images such as those licensed under a Creative Commons attribution only license. Although they are not guaranteed to be clear (user error in labeling or uploading can happen), these images involve far lower risk, and only require attribution to the author for the use. An even safer option is to license images in advance from a reputable stock agency, such as Shutterstock. If you are using a developer, make sure they know that only licensed or truly free images are acceptable, and make sure they have an obligation to back you up if they use an image they aren't supposed to use.
Legal letters and copyright law can seem daunting, but with a little advance planning, these problems can be avoided. Take some due diligence steps up front, and you can avoid a costly legal headache later on.
DISCLAIMER: This article is for general interest purposes only and is not legal advice. Always consult with a lawyer before making legal decisions.