Last week, I wrote a blog article entitled Top 10 Goals before the 2012 New Year, where I touched on a number of important concepts for small businesses to accomplish before the 2012 New Year is upon us. In this article, I want to warn businesses about common misconceptions about building your website, which touch on a couple of the Top 10 Goals. In particular, most businesses (of any size) make incorrect assumptions about the acquisition of photos and images, potentially exposing themselves to expensive lawsuits and embarrassment.
Select photos and images carefully
Do you have a website? Can you prove you have the right license to the images on your website?
If you’re like me, you probably did (or will) hire someone else to create your website. Either way, you probably don’t have your own graphics, images and photos and therefore will either rely on your www designer or website developer to find the right photos and images for your website, or you will spend the time yourself seeking the right images and photos for your company from other websites.
No matter whether you do your website yourself or hire a contractor to build your website, and no matter whether you rely on someone else to find images and photos, or you find the images and photos yourself, you are at significant risk of copyright infringement if the photos and images you use are not your own.
Even if you buy your photos and images, do you have a valid and proper license?
Just because you haven’t received a complaint in years, doesn’t mean you’re off the hook.
In fact, some of the big image and photo suppliers on the Internet, such as Getty Images, have sophisticated image processing software that monitors most websites on the Internet, comparing images on the websites it finds to the images they sell. If they find their images (and they are good at finding their images, even ones that have been altered), they cross-check their sales of the license with the domain name where they find the image located. If their records of the license purchased doesn’t match the domain name, you receive a cease and desist notice with a demand for payment. If you ignore the letter, they will forward on the matter to their attorneys, who increase the financial demands and will sue if your response isn’t proper or timely.
For example, I have seen letters demanding $1,500 for an image that would have otherwise cost $150, and when the matter is escalated to an attorney, the attorney increases the financial demand to $4,500.
To be sued for copyright infringement, your knowledge of infringing activity is irrelevant
You can be guilty of copyright infringement, even if you don’t know you’ve infringed.
Copyright law is a “strict liability” offense, which means that you do not have to have knowledge that you’re infringing the copyrights of someone else. All that is required to be sued for copyright infringement, is to use the works of another without their permission or without obtaining the right license. Therefore, what scenarios could you find yourself in trouble?
- You (or your contractor) “borrow” an image or photo from another website, either by directly copying it or linking to it.
- You (or your contractor) grabs a “free image or photograph” from a website offering such images or photos, but it turns out they don’t have the right license themselves.
- You (or your contractor) actually purchases the rights to an image or photo, but you don’t purchase the right license or you don’t save your receipt to show proof of your license.
- Your contractor says they own the image, but it turns out they didn’t purchase the right license to utilize for you.
- You (or your contractor) actually purchases the rights to an image or photo for your website, but you decide to use that image on a different website instead, and you either haven’t purchased the right license to do this or you haven’t saved your receipt to show proof of the right license.
- You (or your marketing agency, contractor or advertiser) reuses an image or photo your company originally purchased for use on the website, for a print advertisement or for placement on your actual product to be mass-produced.
Copyright law is almost setup to make most businesses fail
You can be guilty of copyright infringement, even if you hire someone else to build your website.
It turns out, that most businesses can fall into any of the traps above, because of human nature. First, most employees don’t fully understand copyright law, and just assume whomever they hire (or wherever they go on the web) knows more about these issues than they do. Second, most people don’t fully understand the requirements of the license attached to the image or photo they purchase, if they even read the license. Third, most humans treat a purchase as a purchase (i.e. “I bought this microwave, therefore I own it and can do what I want with it.”), but copyright law doesn’t work that way. Just because you have photos and images sitting in a special folder called “purchased images,” doesn’t mean you can use those photos and images any way you want — and don’t forget that each photo and image in that folder probably have different rights and licenses attached. Forth, most stock photo companies don’t make their licensing easy to understand, track, manage; and worst of all, they will change their licensing over time.
You need to treat photo and image acquisition seriously
In an ideal world, (1) you should provide your own photos and images. When that’s not possible, (2) you should first try to commission your own work. If that’s not possible, then (3) buy the right stock photography from a reputable provider, such as Getty Images. Finally, and only as a last resort, (4) allow a third-party contractor to do it.
(1) Providing your own images and photos is the ideal option
Because your own photographs and images are your yours, no one can take away your right to them. US Copyright law works to protect you. Besides, when you provide your own photographs and images, you’re providing your own unique touch to your company’s brand and identity.
(2) Commission photos, images and clip art if you can
Not treating this seriously? Plaintiffs’ attorneys will love you!
If you can’t provide the graphics you desire by yourself, then the next best option is to commission what you need from someone you hire. The best option is an employee, because US Copyright Law provides that the works and expressions of employees (in the course of their employment) are owned by their employer.
If you do not have an employee that can provide the images and photographs you need, then you can hire a contractor to do so. Beware, however, that US Copyright Law can work against you. If you hire a contractor, you want to put that contractor under a contract, that says any and all works they produce that is “protectable under US Copyright Law shall be deemed a work made for hire,” and that the contractor assigns all right, interest and title in any works produced to your company. If you fail to put your contractor under such a contract, you may be able to use what your contractor provides you, but they will ultimately own it. This means they can resell it and even restrict you from using the very photos and images you paid them to produce, if your scope of use was outside what was originally commissioned.
This is an excellent time to remind you to hire a competent business lawyer or business attorney to either provide a standard independent contractor agreement for your business, or to review any contracts given to you by your potential contractors. (Law 4 Small Business provides a cost-effective flat-rate contract review service, if you need a contract reviewed in a hurry.)
Regardless of whether you utilize an employee or contractor to commission your photos or images, remember that they are human and humans make mistakes. Therefore, make sure whomever you commission is under contract to NOT use the works of another – you’ve hired them to produce the images or photos themselves, right?
(3) Buy images and photos only from reputable stock photography companies
The promise of “free photos” or “free stock art” can be enticing, but carries potential risks. You must be very certain the vendors are legitimate, and that the photos and images they offer are not infringing the works of another.
If you do obtain an image or photo from a source you suspect isn’t 110% legitimate, be careful of your use of the image or photo. Don’t incorporate it into your product, for example. If you receive a cease and desist letter, make sure you can quickly replace that image or photo with something else without much expense.
Keep track of your licenses, and as a corporate policy, always keep them with each image!
Regardless of the source you purchase your stock photography or images, make sure you (1) purchase the right license, and (2) you keep a copy of the license with the picture at all times. When considering what license to purchase, consider how important the image is to your overall brand and identity. Will you perhaps desire to use the image in print ads and/or commercials? Will you want to incorporate the image into your product? Will you want to resell the image? Do you want to use the photograph, to the exclusion of everyone else? These factors will determine the type of license, with the price increasing as the rights you wish to obtain increase.
(4) Only as a last resort, allow your contractor or third-party vendor to obtain photos and images for your business
This is, unfortunately, the most common route for most small businesses. They hire a web designer or web developer to build their website, and “how to build a website” includes providing “stock photography,” relying completely on the web builder’s scrupulous behavior and financial wherewithal to not violate US Copyright laws.
Some small business owners hire their nieces or nephews to build their website, and some are enterprising enough to “outsource” their web development needs to offshore contractors. The problems with both approaches, is these “contractors” know very little of US Copyright law, and will not be available to back you up if and when you receive a Cease and Desist letter or threat of a lawsuit.
Ask yourself, “If I’m sued, how would I want to be prepared?”
Many contractors will tell you “It’s okay, I have a bunch of stock photography I purchased and work from.” The problem with that statement is, they aren’t copyright lawyers, and don’t fully understand the license they purchased (if they in fact purchased a license). Furthermore, just because they purchased a license, doesn’t mean that license will transfer to you. Finally, if and when there is an issue, will they be available to provide you with proof of a proper license? Do they have the resources – financially and legally – to defend you if need be?
Therefore, when hiring a contractor or third-party vendor to do you website, follow these guidelines:
- Make the contractor sign a contract for the job, indicating they will only use photos and images properly licensed to YOU, not to them, and that they “agree to indemnify you, and hold you harmless, for any action brought about by a third-party alleging copyright infringement for any work provided by the contractor.”
- Require the contractor to have an insurance policy of sufficient size to properly indemnify you for any copyright infringement lawsuits. Make sure you have a copy of the policy, and it shall always remain in place.
- Give the contractor a lecture on (i) the importance of not violating US Copyright law, and (ii) clearly explain what type of license you will require.
- Make sure the contractor understands that before you will pay them, that they must guarantee and assure you that any and all images used, purchased or incorporated into the website (or other works provided to you) will (i) be first approved by you, (ii) be purchased in your name, (iii) be obtained with the right license, and (iv) will include a valid copy of the license is provided with each photo or image.
- Require your contractor give you a list of all images and photos used, and for each and every photo or image, indicate where purchased, the raw image itself (i.e. a copy not incorporated into the work or website), the license, and “quick overview” explaining the limitations of the license; as part of his or her final deliverable to you.
It is indeed unfortunate that so much effort need go into what most business leaders consider a “means to an end.” That is, the desired result is a great looking website, and the right photos and images are a means to that end. However, without doing this the right way, you may find yourself where thousands of other business leaders are finding themselves: Fighting off a potentially costly copyright infringement lawsuit.
Lately, it seems plaintiffs’ attorneys are demanding damages, not just that you stop any infringing use.
I speak from experience: Some of the copyright attorneys representing copyright holders are out for blood. They aren’t just trying to stop the infringing use. They are seeking damages. Don’t let you or your business fall victim to such practices, by being sloppy in how you acquire your stock images or photographs. Do the right thing, and be careful.
Law 4 Small Business (L4SB). A little law now can save a lot later. Albuquerque business lawyers and Chicago business lawyers helping small businesses protect their intellectual property, trademarks and copyrights, and position themselves properly to avoid infringement lawsuits.
