Anyone who finds a notice of copyright infringement in the mail is probably feeling more than a little worried and lost. The accusation of copyright infringement is often accompanied by a scary, long-winded letter from a lawyer and the person receiving it may not be aware that the way they used an image constituted infringement.
In this article, we’ll give you some context on copyright infringement on images and stock photos and talk about the next step if you’ve received a notice.
Let’s start with the basics: What is copyright protection?
If you’ve been served with a notice for copyright infringement from companies like Shutterstock, Getty Images, iStock, Dreamstime, Alamy, Copyright Agent or similar, your first – and very understandable – reaction may be to feel angry and singled out. With so many images out there on the internet, why come after me? Are these people just trying to get me to pay a fine, regardless of what I did? Taking a moment to remember what copyright is and why we have it may help you calm down and think about the situation more rationally.
According to Oxford Dictionary, copyright is ‘the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material.’ The concept of copyright is surprisingly old, having developed shortly after the printing press in Central Europe and later gaining its first legal footing in England. Not all cultures and countries treat intellectual property the same, but almost all have the idea that some degree of credit should go to the individual who created the art, the idea, the work, etc.
Think about how much time and effort goes into developing that sort of work. It’s more than understandable that the creators want to protect and be compensated for it. And it’s not uncommon for people to steal that work. So for some creators, they really have no choice but to pursue this if they want to make a living doing what they do. Bear this in mind, whether you used the copyrighted image intentionally or by accident.
What constitutes a breach of copyright?
Whenever there is an accusation of a breach of copyright, the accused often immediately think of a myriad of reasons as to why it isn’t really their fault. First and foremost: You are always responsible for observing a copyright on any visual material you use.
You are still financially liable for using copyrighted content even if:
- It was used completely unknowingly or by accident
- It was immediately taken down after you received a notice
- It was edited or otherwise changed
- It was licensed to your web developer
- It was cited and sourced to the creator
- It was used on a non-commercial site or wasn’t intended to make money
- It’s mentioned in your site’s disclaimer
- It’s embedded or not otherwise saved on your servers
In this way, copyright infringement is no different than any other crime: Whether you did it intentionally, unknowingly, or completely by accident, it doesn’t make you less liable for the infraction or for the damages. An apology and signs of remorse may affect judges and juries and persuade them to reduce the punishment, but ‘I didn’t know’ won’t get you very far. This applies equally to the arbitration of intellectual property.
But wait: What about fair use and the public domain?
It’s true, not all works are protected by copyright. There are two fairly common instances of this.
The first is fair use. Essentially, this allows for the use of a limited portion of the work for commentary, research, and education. Fair use includes parody, which allows for the use of copyrighted work for satirical purposes to provoke thoughts or feelings, or to provide commentary.
Generally, four factors are considered when determining fair use:
- What’s the purpose of the use? Is it being used commercially? Is it for non-profit or educational use?
- What’s the nature of the copyright-protected work?
- How much of the work is used?
- What is the impact on the potential market for or value of the copyrighted work?
If you are using copyrighted materials commercially, you’re not going to win a judgement of fair use. Some clear instances of fair use are using an image for educational purposes or as an object of a critique. There’s a lot of advice out there on how to use something in fair use, just make sure to seek that advice before you use the copyrighted material.
The second is public domain. Any work that isn’t protected by a copyright is considered to be in the public domain. This could be because the copyright has expired, the copyright holder has relinquished their copyright, allowing the work the be used freely, without permission, or attributing the work to the author.
In short, you can use works in the public domain freely and without worrying about copyright. However, it is worth mentioning that you are not free to use copyrighted material just because it contains elements of something in the public domain. For instance, the Mona Lisa is in the public domain, but if you find an image in which someone has used elements of the Mona Lisa in their art, that art may still be subject to copyright. Generally, a cursory Google search is all you need to figure out if something is in the public domain.
Speaking of Google, don’t fool yourself: If you use copyrighted material, you will get caught
The days of the online version of the Wild West, in which websites were run by completely anonymous people and the use of images and content was untraceable, are long gone.
There are many online services now dedicated specifically to finding and verifying plagiarism and copyright infringements. Reverse image searches on Google can easily locate where an image has been used. It’s also worth mentioning that while a lot of these are legitimate inquiries into where and how their assets have been used, there is a growing trend of predatory prosecution of copyright infringements.
Commonly known as ‘copyright trolls’, there are unfortunately people out there who seek to entrap others in copyright infringement or serve overloaded editorial staffs with notices in the hope that they’ll simply settle rather than fight back. Famously, a New York-based lawyer named Richard Liebowitz filed so many frivolous copyright infringement cases that it led to his eventual suspension as a practicing lawyer. But not before millions were paid for alleged copyright infringements.
So, in brief, if you find yourself saying ‘no one will notice’ when you’re debating about using an image that may or may not be ok, think again.
The cost of copyright infringement can vary from very low to absurdly high
The costs of the copyright infringements vary wildly and often depend on many factors, including how and where the image was used, how much money was made by using it, how much money was lost from not paying for it, and other factors as well.
According to pixsy.com, a site that specializes in locating and prosecuting image theft, estimates that the average cost of using a copyrighted image in the USA without permission ranges from $750 – $30,000 dollars, but can go as high as $150,000. That doesn’t include court costs and legal fees, which can really pile up. These estimates are for general use of copyrighted images on websites.
In the heyday of paparazzi photographers, images were stolen and printed and then damages paid in the millions for their misuse – sums that the tabloids happily paid. But generally speaking, misuse of an image online doesn’t run that high.
Still, if you’ve received a notice for copyright infringement, there may be a sum mentioned or they may say that they are currently working on the amount. Either way, it’s time to look at what to do when that letter arrives.
And now we come to it: What do I do if I got caught using copyrighted material?
If you haven’t taken a lot of comfort in this article so far, it’s because there’s not always a lot to offer in this situation. We’re sorry to have to say it.
Remember that you’re responsible for any copyright infringement regardless of intent – whether you knowingly used a copyrighted image or it was an accident. If you were contacted by the artist or photographer directly, the best way to start out may be with a good old-fashioned apology. If it was an honest mistake, explain yourself honestly and offer to remove the image.
In the somewhat more likely case that there is a lawyer involved, then the best piece of advice you can be offered is this: get a lawyer. The ins and outs of these legal cases are too complex for you to arbitrate based on your own internet research. You’ll need a professional who knows how it works, who can draft the necessary legal appeals, and who can spot any unreasonable demands for your money and time that may arise as a result.
Unfortunately, it must also be said quite plainly that the best possible defense against a copyright infringement is to not use copyrighted materials without permission in the first place. Even a modest settlement for an infringement usually completely outweighs the benefit of having used the image, not to mention the drain on your valuable time and resources.
About the author
Jonathan Løw is the co-founder of JumpStory. He is one of Denmark’s most well-known entrepreneurs and business authors. He has been nominated as Entrepreneur of the Year and is amongst Denmark’s 100 most promising leaders according to a major Danish business newspaper. In addition to being a serial entrepreneur, Jonathan Løw is the former Head of Marketing at the KaosPilots – named Top 10 most innovative business schools in the world by FastCompany. He is also former Startup-Advisor and Investor at Accelerace – the leading investment fund for startups in Denmark.