Hiring a webmaster to create a new website with search engine optimization is an overlooked copyright infringement liability. Many webmasters lack the training needed to fully protect your website.
To generate interest, webmasters add public photographs and video to the site. Depending on the images and how rights are acquired, these may attract litigation.
Avoiding Copyright Trolls
In recent years, photographic rights holders, attorneys, and others commonly and derogatorily known as copyright trolls, have searched the internet looking for images likely to infringe their and their client’s copyright interests. Some of those are attorneys representing individual photographs. Others are collection societies such as Getty Images and stock photo houses which often claim representation of the photographer’s rights.
Assume that photographs, videos, and art are protected by copyright. Whether or not a photograph is registered with the Copyright Office or carries a copyright notice, there is usually copyright protection. Of greater concern to business owners are photographs registered with the Copyright Office before any unauthorized use. Prior registration gives rights holders the ability to seek “statutory damages” and attorneys’ fees in the event of litigation.
Those rights greatly enhance the ability of rights holders to litigate disputes over unauthorized usage and leverage their ability to settle claims for significant sums. In addition, copyright information removal, such as a “photo by” credit, can add another claim of statutory damages from $2,500 to $25,000 plus attorneys’ fees even without a copyright registration. Statutory damages set out in the Copyright Statute permit from $750 up to $30,000 in damages for infringing activity, which amount can be raised to $150,000 if willful infringement is proved. Statutory damages and especially the attorneys’ fees tend to add reality to rights holders’ threats.
The Impact of Image Searching on Copyright Enforcement
As a result of image searching now possible and in existence during the past decade or so, the internet can be scoured for images. Normally, searching images was impossible since search engines were text-based.
Text searching does not work unless the image is specifically indexed with text. But an image search allows digitized photos to be input to the search engine, which then can find the same or similar photos. Image searching uses technology, presumably similar in concept, to that involved in facial recognition. These searches are far from perfect, but what they can find is amazing.
For example, by typing images.google.com on a web browser, a Google search bar will appear. What is somewhat different from the normal Google search is that an icon of a camera appears on the right side of the search bar, which, when clicked, allows the public to upload images. By clicking the camera icon, the following appears: “Search Google with an image instead of text.” “Try dragging an image here.” You can then paste an image URL or upload an image, and Google will locate similar images or URLs. By doing this, images owners can find their own photos sitting on a website of others.
Rights holder may easily find a basis to sue unauthorized users for copyright infringement in federal court. Threats of copyright infringement litigation can be very real and can upend small businesses which are slapped with such claims, even if not brought to court. The claim may be sufficient for the user to pay substantial sums to avoid attorney’s fees and other costs. It may be a game of chicken to determine whether you pay or fight. While there may be defenses, finding out may cost dearly.
Small Claims Court and Copyright Infringement
One factor which may influence aggressive activity by rights holders is a new small claims court system enacted by Congress during the past year, which could take some litigation away from the federal courts and place it in a potentially less costly tribunal within the Copyright Office.
While that may seem promising, the parties to disputes need not turn their cases over to a small claims court when that system is finally set up and may still opt to litigate their dispute in federal court.
How to Mitigate Risk from Copyright Infringement Accusations
So what can you as a business do to mitigate these risks? One or more of the following might be helpful.
- Own the rights to use the works on the website. That might be easier said than done. You may need a written license from the rights holder. And the rights you are licensed should comport with the use. if the use goes beyond what has been licensed, that may again result in copyright infringement.
- Receive an indemnity from the seller. If you purchase the website from a third party, make sure that you receive an indemnity in writing from the seller that the website does not infringe the rights of third parties. That indemnity is best if it includes an attorneys’ fees clause. Yet, the indemnity, though, may only be as good as the party that sells it to you. And even if there is an indemnity, it may just be that you would have a litigation claim against the selling party to try to make you whole.
- Consider insurance. Insurance may be available for copyright infringement. Ask your commercial insurance broker.
- Trace the rights to use images. Avoid images where you cannot trace the source, even if you are indemnified.
- Commission new images yourself. Consider having the images taken or commissioned yourself, and make sure you obtain full rights to use the images as you intend.
- Consult a copyright attorney.
And if you do find yourself at the end of one of these threatening emails or letters, consult a copyright attorney. They may not have a perfect answer or response but can usually give guidance to manage risk.
© 2021Paul D. Supnik