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October 9, 2015
Copyright complications are an inevitability for any company that utilizes imagery in their digital products. Many business owners fall victim to complex and antiquated rules regarding the proper and legal use of images, especially when the source of a particular work is questionable at best. Here are some tips to remember if you want to avoid costly infringement claims when using images in any digital application.
Rule #1: If You Didn’t Create It or Pay for It, Do Not Use It
Assume for a moment you are creating a brochure-ware website to highlight your company and the services/products you provide. On the home page of the site is an image slideshow that displays photos of friendly and smiling people; indicative of your happy customers. Unbeknownst to you, your designer copied one of those photographs from an image library on a random website and did not get permission for its use. Unfortunately, the moment you launch your new website onto a public platform – such as the internet – you will likely have committed copyright infringement.
Although it may sound obvious, many business owners fail to recognize and consider the ramifications of using an unlicensed artistic work in their digital products. Though it is unlikely that they intentionally commit intellectual property theft, it is more likely that they do not realize what they’re doing could have dire consequences. To protect yourself – and your business – from an unanticipated copyright infringement claim, make sure you can affirmatively answer “yes” to either of these questions when using an image (or other media type) in a digital product:
Did you create the artwork; or
Did you obtain a license to use the artwork?
Failure to ensure your right to properly use an image could result in a financial punishment you likely have not considered. Potential penalties, if caught, could range from a polite request from the copyright holder to remove the image to a statutorily imposed penalty of up to $150,000 per image – see 17 U.S. Code § 504(c)(2) for more information on damages.
Rule #2: Although You Created It, It May Still Be Protected by Copyright
Ask any designer who’s been in the game for a while and they will freely admit that, in the world of design, originality is now the exception. Most new works of art can be traced to a deviation or variation of some other piece already in existence. Designers obtain inspiration by admiring other great works and inadvertently adopt some of the characteristics that make the original work exceptional. However, a copyright problem could develop if the newly created work is substantially similar to that of the original. For example, in a famous copyright case from 1999, artist Thomas Kerr drew a picture of a man whose Mohawk’s shape was that of the New York City skyline. Several years later, a magazine artist drew a completely different picture of a man with a similar Mohawk, also depicting the New York City skyline. Although most people likely wouldn’t confuse the two drawings, there were enough similarities between them for the court to find copyright infringement.
When using a designer to create imagery, it’s important to know if there is a preexisting work on which the design is based. If there is, you may want to review the original work and look for signs of substantial similarity. Determine what makes the original piece unique; what makes it art? Afterwards, review your piece and see if you have the same answers. If so, you may have a copyright issue on your hands.
Rule #3: Royalty Free Does Not Mean Copyright Free
Many people mistakenly fall victim to using images labeled “royalty free”, believing the images are free to use. Unfortunately, this is a misconception that often lands unsuspecting digital product owners in the middle of an infringement action.
“Royalty Free” describes the allowed use of an image after the image has been properly licensed. For example, suppose you license a royalty free image of a frog. Once properly licensed, you then have the right to use that image as often as you like and in almost any manner – web pages, t-shirts, balloons, stickers, etc. – as long as the license does not provide for any specific restrictions. However, the key here is the need to obtain a license for the image, which is usually compensated with some form of monetary payment. Do not assume that an image labeled “royalty free” gives you cart blanche to do whatever you like without a license; you could end up on the wrong side of a copyright infringement claim with little to no defense for your actions.
Rule #4: When In Doubt or Without Proof, Assume the Image is Copyrighted
When a photographer takes a photograph, he is the immediate owner of the copyright of that photograph. As the copyright holder, he has the right to license the picture, sell the copyright to someone else and a myriad of other options. Assume for a moment that he places the image on his portfolio website for the world to see. Shortly thereafter, an illegitimate gallery service copies the photo and places it on their site as “copyright free”, indicating that the image is free for anyone to use. If your designer were to download that image for use on your site, you could be unknowingly – and unintentionally – committing copyright infringement.
Although you believed the image was copyright free, in reality it was not. The only person allowed to freely give away the use of an image is the copyright holder; in this case, the original photographer. While you may not have willfully violated copyright law, a copyright was still infringed and the copyright owner is entitled to damages.
To avoid this scenario, always make sure you can trace the source of an image to the actual copyright owner. Except for cases of public domain –which is not discussed in this article – all images, even those claiming to be “copyright free”, may actually be subject to copyright protection. “Copyright free” may only mean that the copyright holder has no intention of pursing copyright actions against the use of an image; but it does not mean that there is no actual copyright.
Although it may be difficult at first to understand the labyrinth of copyright law, an easy first step is to imagine a picture as a physical product. If you made the product by hand, it belongs to you. If, however, the product were made by somebody else, they will likely expect payment for its use. Rationalizing images in this manner may help stave off costly legal expenses and ensure the proper use of images in your digital products.
DISCLAIMER: The information provided in this post should not be construed as legal advice. It is provided for research purposes to give you basic information on the content contained herein. This post does not create an attorney-client relationship nor should it be used as authoritative. If you have questions regarding the conclusions reached in this post, please call our offices or contact your legal counsel.