By F. Michael Speed, Jr., Ph.D, Partner, Standley Law Group LLP

Your fledgling startup is growing and you bring on your first marketing manager; a go getter with all the computer skills needed to get your brand out over social media and the internet. Within days, you have a new website, a new Facebook page along with Twitter and Instagram accounts that are actively followed. Your webpage is adorned with photos of seascapes and waterfalls that match your branding goals and green friendly image. Your leads are increasing and sales are starting to pick up.

(Use permitted by Creative Commons Zero (CC0) License)

Then, it comes:

“To Whom It May Concern, This office has been retained to represent the photographer whose photos you have illegally copied and placed on your website. The photographer owns the copyright in those photos and you do not have permission to use them on your website. You are to immediately remove the images from your website and cease and desist from all further use. Please understand that my client intends to pursue this matter to the fullest extent of the law. Sincerely, Copyright Lawyer.”

You ask yourself, “Could this be true? Is this going to cost me money?” For the unwary, the answer it is likely true and it may indeed cost you money.

Copyright Basics Relating to Web Images

A copyright in a work arises when a work is created. Generally, a copyright belongs to the author of a work; in the case of a photograph, the photographer. The validity or enforceability of a copyright is not affected by the use or nonuse of any symbol such as © or phrase such as “copyright protected material.” Additionally, while registration of a copyright is required to enforce one in court, failure to register has no bearing on the right to a copyright. In short, there is not much a photographer has to do other than actually snap a photograph in order to a have a copyright in that photograph.

The owner of a copyright has a right, sometimes called a negative right, to exclude others from reproducing the work, distributing the work, or creating a “derivative work.” A violation of those rights can lead to an allegation of infringement which is established upon proof of “1) ownership of the copyright; and 2) copying by the defendant.”  Zomba Enters. v. Panorama Records, Inc., 491 F.3d 574, 581 (6th Cir. 2007). Copyright infringement is considered strict liability because the state of mind of the infringer or the infringer’s knowledge that the copied work was copyrighted is immaterial to a finding of infringement.

If the copyright has been registered with the U.S. Copyright Office, the copyright owner can pursue an infringement claim for actual damages or “statutory damages” which does not require proof that the copyright owner was harmed by the infringement. Statutory damages range from to $750 to $30,000 per violation. Statutory damages for willful infringement can reach as much as $150,000 per violation. In addition to damages, attorney fees are available to be awarded and are “awarded routinely, in copyright infringement cases.” Bridgeport Music v. Diamond Time, 371 F.3d 883, 893 (6th Cir. 2004).

The seemingly innocent copying of a photo found on the web and placed into a commercial website can be expensive. Indeed, such was the case for a small Ohio business that was sued because its contracted for web designer copied four photographs off of the internet that were the copyrighted property of another. The end result after protracted and costly litigation was a finding of joint and several liability by both the small business and the web designer for $14,280 in statutory damages plus an additional award of more than $95,000 in attorney fees and court costs. Corbis Corp. v. Starr, 2010 U.S. Dist. LEXIS 143768 (N.D. Ohio Sept. 3, 2010).

Liability under the DMCA

For the unwary, copyright infringement liability is not the only risk when using images taken from the web. Under the Digital Millennium Copyright Act (DMCA), a user of an electronic image can be liable for removing or changing “Copyright Management Information,” (“CMI”). CMI is defined by the Copyright statute as: the title and other information identifying the work, including the information set forth on a notice of copyright; the name of, and other identifying information about, the author of a work; the name of, and other identifying information about, the copyright owner of the work, including the information set forth in a notice of copyright; the terms and conditions for use of the work; and identifying numbers or symbols referring to such information or links to such information. 12 U.S.C. 1202.

The DMCA prohibits both falsifying CMI with an intent to hide or induce copyright infringement and removing CMI without permission of the copyright owner. Notably, CMI does not need to appear on the face of a photograph. A line of text next to a web photo with the photographer’s name on it has been held to be CMI. A person found liable under the DMCA can be subject to actual damages including disgorged profits or statutory damages in a range between $2,500 and $25,000 per violation.

In Agence Fr. Presse v. Morel, 2014 U.S. Dist. LEXIS 112436 (S.D.N.Y. Aug. 13, 2014), a Court awarded a photographer 1.2 million dollars against a defendant for copying and removing CMI relating to 8 photographs. The CMI consisted of a tagline with the photographer’s name that was placed next to the photos. After the verdict and judgment, the parties settled for an undisclosed amount.

Five Ways to Avoid Trouble

  1. Never use photos or art on your commercial web page that you or your staff did not create.
  2. Before you use photos or art on your commercial web page that were created by another, ask for a license.
  3. If you are attempting to use a digital image found on the web, assume, 1) it is copyrighted and 2) check on the image’s site to see if there is information about its use or a license. If this information does not exist, do not use the image or art. If there is information about a license or use, then follow the instructions and abide by any attribution requirements. There are sites that publish photos that allow for unlimited use without attribution.
  4. Train your staff and marketing department about these risks.
  5. Discuss these risks with any third-party web developer and request indemnity from them associated with these risks.

If you have any questions or are unsure about a particular photo or image, make sure to seek the advice of your copyright attorney before posting the photo or image on your website or social media sites.