Oct 5

Four tips to keep on the right side of copyright

It could happen to anyone – and this time, it happened to us.

I got the demand letter after hours on Friday. A law firm representing a photographer said we used a client’s photo without permission to illustrate a blog, and now the client wanted to be paid. We’ll set aside the fact that this photo was hardly anything unique (Scrabble tiles spelling out a word), the post was years ago (2018) and the demand significant ($2,300 for a single use).

But the reality is we may have accidentally used a copyrighted photo without permission – and I don’t blame the photographer for wanting to be compensated.

If the claim is accurate, I do blame myself. I preach to my team and to our clients that you can’t just go out to the internet, grab images or words and pass them off as your own. It’s both tempting and easy to do – it’s all out there, right, and who will know? In effect, you’re stealing something when you do this, as sure as if you walked into a store and took a magazine or shirt.

We wrestle constantly with the need for images to illustrate blogs and social media posts, both for ourselves and our clients. You need to have something eye-catching if you want to get noticed. And it’s impossible to create custom images on deadline for every need.

My team and I have protocols in place to prevent misappropriating copyrighted images. We’ve made further changes over the years, too. Our process was lax in this instance.

I started Monday with a call to Scott Keller, one of the many talented law intellectual property attorneys at our law firm, Warner Norcross + Judd LLP. I was prepared to offer an apology and $100 as compensation, which equates to our monthly Adobe Stock fee – and seemed more than fair to me.

Turns out, he was aware of this photographer and the law firm that represents him. Scott told me legitimate claims like this typically settle for around $1,500 – which took my breath away. For an ordinary photo, nothing special, used to illustrate a blog?

“No matter what the content of the photo is, if it was taken by a professional, it most likely is covered by copyright,” Scott explained. “If you use it without permission, you will pay the price.  Copyright law provides for something called ‘statutory damages,’ which start at $750 per photo infringed and can go up to as much as $150,000 per photo infringed. So the consequences are substantial.”

I’m a big believer in learning from your own mistakes – and an even bigger believer in learning from the (potential) mistakes of others. Following are some free tips so you can avoid this pain:

Don’t trust Google:

You can find a lot of great images on Google and then filter them by those available “labeled for reuse” without permission or royalty. That’s what I’m thinking may have happened in this case, because those are the only images we (used to) take from Google. Don’t rely on this filter – ever.

Shoot your own photos:

It’s always preferable to shoot your own photos when possible. Mobile phones have exceptional cameras these days, which makes it quick and easy to capture photos of events, landscapes and more. (Pro tip: If you’re planning to post photos with people, especially children, make sure you have their permission before doing so.)

Explore free image sites:

Of course, content often requires something more creative, detailed or specific than what’s in front of your phone. Get to know free image sites, which allow you to download and use images for free. My go-to site is Pixabay, which has a large library that is surprisingly current. It went from zero to expansive for COVID-19 photos, for example. You can even tip the creator of an image after you download if you are so inclined.

Pay for a license:

Even Pixabay has its limits, as frustratingly limited searches will show. We pay for a monthly license from Adobe Stock, which generally takes care of our needs and those of our clients. You might also check out Getty Images or Shutterstock. All three will let you try before you buy – or license individual images for a special project. But be sure to pay attention to the terms of use for such services so you are using the image only in the way allowed by those terms. There are some limits.

I must admit, I choked more than a bit when writing that check for $1,500, but never blinked at the entirely reasonable bill I received from Warner for spot-on advice that saved me from heartache and litigation.

The advice to readers of this blog? As always, no charge.


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