Tips for Avoiding Copyright Infringement
Virtually every business and nonprofit uses a website, brochures, pamphlets, catalogs, advertisements, and other publications to tell their story to the world. Those publications are full of photos, videos, artwork, and text. Many businesses have had unpleasant experiences of receiving a cease-and-desist letter, a large invoice, or even a lawsuit for alleged copyright infringement due to the unauthorized use of an image. Business owners often think this is a scam, but unfortunately, it is usually legitimate.
Monetary damages for copyright infringement can range from $750 to $30,000 per infringement, and the infringer can also be compelled to pay the copyright owner’s legal fees. A court can reduce the amount to $200 if a judge finds that the infringement was innocent, but it can be expensive to get to that point in court.
In this digital age, it takes very little effort for a copyright owner to find an infringing use. There are photography agencies that own or control millions of photographs. They use automated search bots to scour websites all over the world and ferret out the unlicensed use of their photographs. Similar methods are used with music and videos. After they find you, you could receive a cease-and-desist letter and a demand for payment, and even a form for conveniently using your credit card to pay the fee demanded. It is all automated and usually legal.
To avoid claims of copyright infringement, businesses should take care to reproduce and distribute only works that they own or are properly licensed from the owner. Here are several tips.
- Use Your Own Work. With a smart phone in virtually every pocket today, it is easy to take your own photographs and videos. If you use your own works, there is virtually no risk* of copyright infringement.
- Your Employees Work Is Your Work. If you have employees, the writing, artwork, photos, and videos that they produce in the course of performing their duties belong to you, the employer, under a doctrine called “work made for hire.” These works present virtually no risk of copyright infringement. Things can get a little tricky when the author is not a standard employee but an independent contractor or gig worker. In those cases, it is best to consult with legal counsel and use a written license. Even with standard employees, it is best to have a contract or employee handbook or manual that specifies the “work made for hire” status of works of authorship.
- Get a License. The proper way to get permission to use copyrighted material is to obtain a license from the owner. A license should always be in writing. Be sure to obtain all the rights needed so you can use the work as you wish. For example, it is infringement if you have the right to use a work for two years (the “term”) but you use it for three years. It is infringement if you get the right to use a work on your website (the “media”) but then you put it in a television advertisement. Think ahead about all the ways you will want to use the work and request the appropriate license.
- Beware of Royalty-Free Licenses. Sometimes you will see an organization offering royalty-free licenses. That does not mean completely free. A royalty generally means a recurring fee based upon the frequency of use or number of units sold. That contrasts with a flat fee, which is a one-time fee. A royalty-free license may still require a flat fee. The license will also likely be limited as to term, media, or territory. Read the fine print. Consult an attorney if necessary.
- Choose your Web Designer Carefully. Businesses often hire outside agencies to create websites and populate them with images. Your contract with the web designer should include a promise from the web designer that all materials used will be properly licensed. Furthermore, the designer should agree to indemnify you and hold you harmless if there is a claim for infringement. The challenge here is that some web designers are young or inexperienced. They may not know how to properly license material. They also may not have any money, so their promise to hold you harmless may be worthless.
- Use a Copyright Disclaimer. You can consider using a copyright disclaimer which describes who created and owns the various works in your publication and the extent to which such works may be copied. Disclosures can be complex and are beyond the scope of this blog. Consult an attorney if necessary.
- Get Media Insurance. Publishers can purchase media or libel insurance against claims of infringement of copyright and trademark, invasion of privacy, defamation, and similar claims. This insurance is not as common as auto, home, or life insurance. Your broker will need to find a carrier who offers this coverage.
Please contact us if you have any questions about protecting your copyrights or defending yourself against claims of infringement.
* Attorneys are always reluctant to say, “there is absolutely no risk.” We always leave a little wiggle room. If you take your own photos, someone could still claim you infringed their work, but you could defend yourself, prove you did not copy their work, and prevail. There is a risk of having to defend yourself even if you are found not liable for infringement.
This is not intended to be legal advice. You should contact an attorney for advice regarding your specific situation.
Gary Schuster is a Partner with the firm and practices Business Law, Estate Planning, and Arts & Entertainment. He can be reached by phone at 845-764-9656 and by email.