The saying goes, “A picture is worth a thousand words”. It could also cost you a thousand dollars if you’re not careful. Copyright enforcement is once again becoming a big-money business, and using someone’s creative material on your website, blog or social media account without the proper permission could cost you big money.
Copyright, Licensing, Fair Use, Derivative Work, Royalty Free, Infringement…these are all legal terms having to do with the laws used to protect creative works on behalf of their owners. But how do they affect the average business website owner, blogger, or social media user? Turns out, quite a bit. People who use photos, music, text, videos, etc. on the internet (in other words, everyone with a website or social media account) really should take a few minutes to become familiar with some of the key points of copyright law.
So what is copyrighted? How do you know if something is copyrighted? I’m not a lawyer, but as a professional in a creative industry, I get asked these questions a lot. It’s pretty simple actually. Unless something is specifically designated with a Creative Commons license (more on that later), it’s copyrighted. So that means pretty much everything. If a person creates an original work – a photo, a video, an illustration, a song, etc. – they own it. They can then sell the rights to use or display their creative works to others. This is how artists make money.
Creative works can be anything. For instance, this article is protected by copyright. I created it using words from my own brain and therefore I automatically own it, regardless of whether or not I specifically state somewhere that the copyright belongs to me. But if someone uses that material without permission, regardless of where they found it, they are breaking the law. If you copy this article somewhere else without my permission, I’d be well within my rights to claim compensation.
I have a friend who moonlights as a DJ on evenings and weekends, and like most, uses a website to promote his services. I received a panicked call from him one evening asking my advice. He’d received a letter in the mail from a photo agency claiming to own the rights to an image that they believed he was using without permission.
Basically the letter stated that if he couldn’t provide proof that he had purchased a license to use the image, he would need to immediately remove the image from the site. Okay, fair enough. But it didn’t end with that. They also demanded he pay them a hefty compensation/fine amount (nearly a thousand dollars) to avoid further legal action, which threatened to not only shut down his website and lose his domain name, but further punitive financial damages and lawyer fees.
As far as my friend could recall, the image had been there for years and was put on the site by the original designer (not me). He had lost contact with the designer, so he had no way to establish whether or not that person had purchased a license on my friend’s behalf. If I had to bet though, that person probably didn’t.
Years ago, it just didn’t occur to people that you couldn’t take images from the internet use them for your own purposes. The prevailing attitude was that if it was there to download, it was okay to use it. A quick search and you had thousands of choices available – music, pictures, videos, all of it was there for the taking. Why would you pay for something when it was right there free with a quick right-click-save-as? Of course, it wasn’t even close to being legal, but even if you knew that, it wasn’t like the Internet Police were going to come arrest you. I have no doubt that this is how the offending image made it’s way onto my friend’s site.
While I agreed that the amount of money they were demanding far outweighed any harm or loss he had caused the license holder, they weren’t willing to negotiate. Eventually he complied and paid the fine. However painful, it wasn’t worth the risk of losing his business over. He didn’t have the resources for a legal battle, nor did he have a legal leg to stand on anyway, as is the case with most of the people who get these letters. While he didn’t even realize he was committing copyright infringement, ignorance isn’t a defense. Obviously a costly lesson. The irony was that while he fully understood it was illegal to pirate music to play at the events he was hired for, it never occurred to make sure that he had license to use the images that appeared on his website.
Before we get too much further into this, let’s touch on Fair Use. You may have heard this term and wondered what it means as far as your site is concerned. Fair Use is a legal doctrine that allows the limited use of copyright-protected creative works without acquiring permission from the owner. It mainly constitutes using a small portion of the copyrighted material for purposes such as commentary, parody, education or criticism. Here is an article that explains it more thoroughly. But lets be clear, Fair Use is a defense against – not immunity from – legal action. You can still be sued and it will be up to you to appear and defend yourself. Just ask Sheppard Fairey.
Ignorance is Not a Defense
Now days, most web designers are generally more aware of the fact that you can’t legally take images, music, videos and use them on the websites you create, but with the proliferation of self-updateable websites, blogging, social media sharing and the like, there seems to be a whole new and growing crop of naive content creators out there with no idea they’re putting themselves in harm’s way. License holders are realizing that there’s a lot of profit to be made by going after offenders, and more and more website owners are receiving letters similar in nature to what my friend did. Some feel their techniques are predatory. Fair, ethical or otherwise, the law says they can do it, and they’ll continue to do so. My goal is to keep people from getting these letters in the first place.
There’s a lot of bad information out there. When I’ve warned clients or bloggers that they were very likely to get a copyright infringement notice demanding money at some point, some have been more than happy to set me straight with their “expertise” on copyright law. I’ve been told by many (mostly) bloggers that a person doesn’t need to worry because someone can’t be held liable for copyright infringement…
- if you found it using a Google (or other search engine) image search.
- if you didn’t know you weren’t supposed to use it.
- if you don’t overtly claim the material is yours.
- if you don’t have a popular website.
- if it doesn’t say “Copyright” somewhere on it or have a ‘©’ symbol visible.
- if you attribute the material to the creator.
- if you put a link back to the source website.
- if you change the original dimensions or duration.
- if you open it in Photoshop and re-save it with a different name.
- if you modify it slightly.
- if it was given to you by someone else who purchased it for a different project.
- if you crop or remove the copyright statement.
- if you “Photoshop-out” the watermark.
- if you’re not using it to make money.
- if the material is embedded from it’s source and not saved directly in your own images folder.
- if you have a disclaimer on your site saying the material belongs to someone else.
- if you immediately take down the material if someone asks you to*.
Guess what? No, you can’t use that picture you found using a Google image search. None of the excuses in that list make it okay to use someone’s copyrighted material, or act as defense against legal action in any way when they come after you for doing so. I try not to be too harsh because, admittedly, back many years ago during the wild west of internet sharing I talked about earlier, even I thought some of those were true.
Think of a parking lot. It’s full of empty cars. Some might even be unlocked with the keys in them. Nobody’s in most of them or there to claim them. They’re just sitting there for the taking. Would you take one that wasn’t yours? Why not? Well, probably because you know that taking things that don’t belong to you is theft. And since theft is against the law, there would likely be legal repercussions. Even children understand this. So imagine someone going in front of a judge with excuses similar to the ones in the previous list…
- I never claimed that it was my car so technically I didn’t steal it.
- I took the license plate off the car, which meant I was free to use it.
- I painted a stripe on the car, making it my own.
- I didn’t use it to sell stuff from, so I wasn’t using it illegally.
- I left a note in the trunk for the owner letting them know I’d give it back to them if they contact me.
I could go on, but you get the idea. Pretty ridiculous. Now think of the internet as the parking lot, and photos/music/videos as the cars. The same rules apply. If it’s not yours, or you don’t have permission, don’t use it.
So what can use without worrying about getting into copyright trouble?
If by that you really mean, “What’s out there that I don’t have to pay for?” Not much.
Some recommend getting images from what’s called a Creative Commons resource or Public Domain. I’m not one of them, and I’ll explain why in a second. If you’re not familiar, a creative work is considered to be part of the Creative Commons if its creator willingly gives up the ownership rights, or the copyright on a work expires. From that point on no entity can claim ownership of it anymore and can therefore be used by anyone. There are depositories online that contain libraries of Creative Commons material that are safe to use without requiring licensing or permission.
At least that’s how it’s supposed to work in a perfect world. The problem is that no one is verifying the validity of the ownership of materials being designated as Creative Commons. In other words, there’s no guarantee that the person who’s releasing the rights to a photo has the right to do so in the first place. So if you see a great looking photo there that you then stick on your site and it turns out it to actually be owned by someone else who doesn’t want as part of the Creative Commons, you are on the hook. It’s happened.
And this is where copyright law differs from other criminal laws. If you buy a TV from some stranger and it turns out it was stolen, you have to surrender the TV. But you won’t face any punishment as long as you can reasonably claim you had no prior knowledge. You’re out what you paid, but at least you’re not going to jail. Unfortunately, the same isn’t true when it comes to copyright. If you’re using the material, you are the one that will always held responsible. Even in cases where it can be demonstrated you acted in good faith to acquire permission.
The better way is to purchase a license from a reputable source. I mentioned a few popular stock photo companies earlier, there are many more, all of varying prices and selection. Just ensure that you use due diligence. If the agency doesn’t actually own the rights to do so in the first place, you’ll still be liable. Sure, maybe you could go after the person or company who acted fraudulently in small claims court to recoup your losses, but the chances of being successful are low. I’m not trying to scare you. There are lots of reputable stock photo agencies, just making you aware of the pitfalls so you can be smart about choosing one.
The only sure-fire way to protect yourself is to only use photos you’ve taken yourself, or that someone has taken while acting as an agent for you or your business. In other words, a photographer you hired would generally assign the rights over to you to use. As well, the rights would belong to you if you directed an employee take them. In these cases, any chain of custody is airtight and verifiable.
What if someone other than me puts copyrighted material on my site?
In the case of many blogs or social media sites, much of the content is user-driven. So what happens if a user copies and pastes copyrighted material there? We’re mainly talking about forum or comment activity that can’t always be directly controlled or policed all the time. Fortunately there is case law out there that indemnifies website owners against legal action for content posted in a community-driven online environment. That is of course assuming you can demonstrate you didn’t know about it or encourage it.
Again, this is a defense against legal action, not immunity from it. I also stress that this doesn’t protect you, for example, if an employee or your web guy uploads something to a page on your website that is copyrighted. As the site’s owner, you’re always responsible for those acting on your behalf.
If you own such a community-driven site, DMCA has a shield to use against “Copyright Trolls” called Online Copyright Infringement Liability Limitation Act (OCILLA). You can read the full details of it here. Essentially protects registered online entities from legal action in most cases like this. The catch is that if you own this type of site, you need to first register as an agent. By registering, you’re publicly declaring someone as the “official” contact in case of copyright infringement. In exchange for being easily accessible, you gain protection from lawsuits as long as some conditions are met. This is why YouTube, for example, doesn’t get sued every time someone uploads a copyrighted video. They can be made to remove or shut down the offending material or site, but they themselves are generally immune from legal action.
* If you are the owner of a website that allows users to contribute, I would highly recommend registering with OCILLA. The $105 filing fee is nothing compared to the costs of a copyright infringement lawsuit.