A Picture is Worth a Thousand Words - and Maybe $150,000!
A bank manager decides to update the bank’s website. The IT manager assigned the project wants to include photographs and images to enhance the information on the website. The IT manager uses several photographs from the Internet. The newly designed website also features a great photograph of the bank that one of the tellers had posted on Facebook. On the site, the teller is credited as the photographer. The IT manager also includes a photograph of the bank lobby she took herself during a busy Friday afternoon that showed several bank clients and employees interacting. She knows this will help illustrate the bank’s well-known reputation for providing stellar customer service. The end result is a visually interesting website designed to attract and maintain customers. With great fanfare, the bank launches its new website.
The website does generate a lot of interest in the bank and glowing comments from bank customers. Within a week of launching the website, however, the bank receives letters from individuals demanding that the bank remove certain photographs. Each also demands money and threatens legal action if the bank fails to comply with the demands. The bank manager is also contacted by the attorney of a bank customer, a professional athlete, who was in the lobby photograph. The athlete is unhappy his image is being used to promote the bank without his permission and is threatening a lawsuit. The teller, who makes money selling his photographs, speaks to the bank manager about the unauthorized use of the photograph and asks to be fairly compensated for the use. Finally, the bank’s Internet service provider informs the bank it has
received a DMCA takedown notice and is threatening to shut down the bank’s website. The bank manager calls the bank’s legal counsel.
A few precautions taken at the onset of the project might have prevented that call.
Being Used Freely on the Internet Does Not Mean Free to Use.
While works in the “public domain” are free to be used by anyone for any purpose, the vast majority of images on the Internet are not in the public domain. Therefore it is best to assume a photograph on the Internet is protected by copyright and any use without the written permission of the copyright owner may lead to claims of infringement.
Use of a photograph without permission can be a costly mistake. Copyright owners can (and do) employ the use of web crawlers, sometimes referred to as spiders, to comb websites looking for infringing images.
Much as described above, when an infringing image is located, the copyright owner will send a cease and desist letter to the website owner demanding payment and removal of the offending material. In rare circumstances, the copyright owner initiates an infringement action in federal court. Responding to either will likely require a payment to the copyright owner, if the claim is legitimate. A copyright owner who can prove willful infringement can be awarded statutory damages of up to $150,000.
Providing Attribution Does Not Alleviate Copyright Infringement.
Providing attribution for an image, while commendable, does not alleviate the need to obtain written permission from the copyright owner to use that image. Plagiarism, the concept most closely associated with a failure to provide attribution, is an ethical consideration and hotly debated in the realms of academia, but will not result in legal liability unless it is also associated with infringement of an intellectual property right. Copyright is a concept that prevents the copying of another’s tangible expression that, if proven, can lead to legal liability and the recovery of damages, including statutory damages.
Individuals Have a Right to Publicity.
In addition to a copyright holder owning rights in a photograph, individuals who appear in the photograph may also have rights in the use of the photograph. Each state’s laws vary on the scope and availability of such rights, but generally an individual has the right to control the commercial use of his or her image or likeness. In Minnesota, a business may be liable if the business benefits from the unauthorized use of an individual’s image.
Safely Using Images on the Internet and Social Media Sites.
The safest photographs to use for online content (or any other advertisement) are photographs for which the company or business owns the copyright. A company can own a copyright either by having the photograph taken by an employee whose job it is to take such photographs or by obtaining a copyright assignment directly from the photographer. However, it may be impractical or too costly to restrict the use to only such photographs.
There are several resources for stock photography that would avoid or limit risks of liability. For example, there are websites that provide generally free access to images that are in the public domain. The quality and choice on these sites, however, may be limited. There are also vendors that offer a wide range of high quality, royalty-free images. “Royalty-free” means that instead of paying a per-use royalty fee, an image may be used multiple times and for multiple purposes after payment of a one-time license fee.
Costs, quality and quantity are only a few things to consider when choosing a stock photo vendor. Some vendors make a distinction between private use and commercial use. Some vendors provide licenses that are more limited in scope, such as allowing only for internal uses or for a limited number of publications. Some vendors provide a release from the individuals who appear in any of the photographs, commonly referred to as a “model release.” Significantly, some vendors indemnify the licensee from any claim of copyright or trademark infringement or other liability arising from the use of a licensed image. Be aware that some vendors require attribution to the vendor near the use of the photograph.
Bottom line: when creating content for online or print use, make sure to acquire photographs from reliable sources and obtain the photograph copyright or a license to use the photograph. With licensing arrangements, closely review the license under which the photograph is being used to make sure the license is appropriate for your intended use and, if at all possible, obtain indemnification from the vendor.
This article appears in the March/April 2015 issue of MBA News.
These materials are designed to give general information on the specific subjects covered for educational and discussion purposes only. They are not intended to be a comprehensive summary of the law or exhaustive treatment of the subjects covered. These materials do not constitute legal advice or an opinion, which are provided by Stinson Leonard Street LLP only upon engagement and appropriate information and analysis with respect to specific factual situations.