7 Common Copyright Myths That Invite Legal Disaster

by | Mar 15, 2019 | Uncategorized

Imagine receiving a letter from an attorney, or, (heaven forbid) Getty Images, claiming that you used an image without permission and demanding that you immediately forward payment for a frightening sum of money for this copyright infringement.

You think this wouldn’t happen to you, but it happens to entrepreneurs like you every single day. And guess what – just like you, they also thought that this would never happen to them.

Yet, here they are, holding a demand for $46,000 because they used, and possibly profited from, an image owned by someone else, which they had no express permission to use.

What do you do in this situation?

Copyright law is pretty clear – creators of original works own the exclusive right to use, sell, distribute, reproduce, create derivative works, or otherwise profit from their content. If you violated any of these rights, you’re on the hook for copyright infringement and may be liable for significant damages to the owner.

Excuses like “I didn’t know I wansn’t supposed to use that image” or “only a handful of people saw it,” won’t fly. You use, you pay – end of discussion. Nobody cares that you don’t know the law.

And now, with Google Alerts, Google Image Search and similar services available and used widely by people actively monitoring their IP, getting caught using another person’s content without permission is easier than ever.

To help you avoid this situation, I’m sharing with you the top 7 copyright myths I’ve encountered in my practice, so you can avoid some of the most common mistakes that get people in trouble.

Myth 1: Images that show up in a Google search are free to use.  

Reality: Images are automatically protected by copyright laws as soon as they are created. There’s no requirement that the owner federally register the copyright, place the © symbol on or near the image, or have it watermarked. Whoever created the image owns all rights to it – end of discussion. If you want to use it, you have to find the owner and ask for permission to do so. (Unless your use falls under the “fair use doctrine” which allows use of a copyrighted work in some very limited circumstances, such as for educational purposes – this typically doesn’t apply if you’re running a for-profit business.) If you can’t find the owner, you can’t use it. “I couldn’t find the owner” is another excuse that courts don’t care about when it comes to awarding damages for copyright violations. This is why most businesses use a stock photo service, because it provides you with a license to use the image.

Myth 2: Images from Stock Photo sites are always safe to use.

Reality: Though getting a license from a stock photo site would seem like it’s enough to CYA, sometimes it isn’t. Because sometimes an image ends up on a stock photo site without the owner’s permission, and the owner ends up suing. And when that happens, you have to hire your own attorney to defend yourself, and those fees are often money you’ll never see again, even if you prevail. Problems may also arise if you accidentally get the wrong type of license (for example, buying the cheaper license for personal use, and using the image commercially, in your products, marketing or advertising).

For this reason, many attorneys and seasoned designers recommend that instead of using stock photo sites, you obtain images straight from the photographer under a carefully negotiated contract that spells out both the pricing, type of license, whether you get exclusive rights to the images, and exactly how the images will be used. You’d be surprised how affordable this option can be, especially if you develop an ongoing working relationship with a photographer. And if you’re a good photographer, another option may be to take your own photos.

Myth 3: I shouldn’t have to pay anything if only a few people saw it.

Reality: In a lot of cases, particularly where the copyright is federally registered, the number of people that actually saw the image may be completely irrelevant. If you used it without permission, you may be liable for damages even if only two people saw it, and one of those is your mom.

Myth 4: If I take the image down immediately upon receiving a DMCA notice, I’m safe to ignore the demand letter.

Reality: How long you had the image up is about as relevant as how many people saw it. (Aka not at all.) These factors may seem to mitigate in your favor, especially if you immediately remove the image, but they simply will not undo the fact that you used an image owned by someone else without their permission, i.e. broke the law. It’s the use itself that constitutes infringement, not what happens after. And often, the simple fact that an infringement has occurred can cost an inadvertent violator thousands, even tens of thousands, of dollars.

Myth 5: I’m too small to be on anyone’s radar.

Reality: If you think that being a Mommy-blogger with five readers somehow makes you “too small” for anyone to go after you, think again. There are entire law firms and corporations set up for the sole purpose of recovering damages for copyright infringement. They send out tens of thousands of demand letters for absurdly high amounts, and make their money from settling with infringers out of court for half of what was requested. Getty Images has an impressive track record of policing its IP and pursuing its rights under Federal law no matter how good the infringer’s sob story may be.

Myth 6: All I need to do to avoid a copyright claim is give credit to the owner.

Reality: The ONLY thing that will protect you when you use an image that isn’t yours is getting written permission from the owner. “Giving credit” is not the same as “getting permission.”

Myth 7: All of the images on my site are from my web developer, so I’m safe.

Reality: You’re ONLY safe if you get your own license to use the image. Getty Images, for instance, makes it very clear that you can’t commercially use an image under your developer’s license (or anyone else’s for that matter), and you WILL get a bill in the mail if you don’t follow this rule.

If you hire a developer to build your site and/or work with an agency to do your marketing, make sure that a) YOU have the right to use the content that goes into your website or advertising; and b) your contract with said agency or developer has bulletproof indemnity and hold harmless provisions making clear that they’re financially responsible for any and all claims, suits, damages and expenses resulting from any copyright or other IP infringement regarding any content they procured and used on your site or in your marketing materials.

The Bottom Line

Under US Copyright law, you may be held financially liable for using or posting images, videos, music and other content without the owner’s permission, even if:

You found it on Google images

It doesn’t have a © symbol or watermark

You used it “by accident”

You didn’t actually make money off of the content

You gave credit to the owner

You cropped, resized or otherwise modified the work

Your web developer has a license to use the work (but you don’t)

The work is embedded on your site (as opposed to saved on your server)

You immediately removed it upon receiving a DMCA takedown notice

Only five people saw it

You have a disclaimer on your website

If you have any online presence at all, provide a service that involves the use and distribution of images, videos, written works and other original content in any form, and/or use any marketing or advertising in your business, it is critical that you have at least a basic understanding of the above copyright law nuances.

At the bare minimum, ensure that you own the rights to, or have a license to use, any and all original content you post or share.

And if you have a third party (like a VA, designer, social media manager, or similar agent) procure and prepare this content for you, make sure that use of said content in your business is allowed and that you have a contract that adequately protects you should they commit a violation that ends up subjecting you to fines and damages.

If you get a takedown notice, take the content down immediately.

If you’re served with a demand letter and your use doesn’t fall under an applicable exception (like fair use), contact an attorney to discuss settlement options. Your attorney will explain the process, what your rights and obligations are, and will help ensure that any settlement you enter is fair, full, final, and enforceable.

And if for some reason you don’t hire a lawyer, just make sure that you never send any money without getting a written release!