Stay Informed

Practically all businesses today use company websites or social media to advertise their goods or services. Unfortunately, not all businesses are careful to ensure that the photographs or other images they use are copyright-free. This could expose them to potential liability for copyright infringement. Given the various remedies available, and depending on the facts involved, a copyright owner can recover anywhere from approximately $200 to more than $30,000 per each infringed work. Further, attorney’s fees could be awarded at the court’s discretion. Therefore, companies should be vigilant with respect to the images that they post to their websites.

The Fair Use Doctrine allows for the use of a copyrighted photograph or other work for limited purposes, such as for criticism or teaching, without such use constituting copyright infringement. However, using a copyrighted photograph for commercial purposes, such as to advertise a business, would most likely not be considered fair use under the Fair Use Doctrine. Further, fair use is not always clear or easily defined.

If there is no corporate authorship of a photograph used by a company, meaning that the photograph was not taken by the company’s owners or was not the product of a work made for hire arrangement, then someone else most likely owns the rights to the photograph, unless it is in the public domain. Once a copyright expires, the work becomes part of the public domain. If a photograph is in the public domain anyone can use it without obtaining permission; however, it is not always easy to determine which works are or are not in the public domain. The fact that an image is found online does not mean that the image is in the “public domain”.
Determining the copyright status of a photograph involves a number of factors, including a search for copyright registrations with the U.S. Copyright Office. Such searches are not always conclusive. The absence of a registration does not mean that the work is not copyrighted, as there is no longer a requirement that works be registered. Further, the use of a copyright notice is not required, unless it is an older work.

Some photographers or copyright owners have legal counsel or other agents continuously searching the internet for infringing uses by businesses and others. The searches are made relatively easily by various image search engines. The technology available is so sophisticated that even images that have been modified or altered can be located.

A business may be liable for an infringing photograph found on its website regardless of whether the business had actual knowledge of the infringement, and regardless of whether it was a third party vendor (such as a website developer) that put the photograph on the website.

So, what can a business do to protect itself? The most obvious thing where permission has not been obtained and there is a doubt as to whether the image is copyrighted, is to avoid using the image. While there are many websites on the internet that offer free photographs, an appropriate inquiry should be conducted when downloading photographs from such websites. This is because although the website may indicate that efforts were taken to ensure that the photographs are copyright-free, many of the photographs could indeed be copyrighted. The safest course of action is to get permission from the copyright owner or use only photographs prepared in-house. There are stock photo services that sell licenses for commercial use of images for reasonable prices. When purchasing images from stock vendors, attention should be paid to whether there are limitations to the license offered, such as scope and duration. Records of license purchases should be kept in case a claim is raised by a copyright owner.

Choosing to save money by deciding not to obtain a license for a photograph could ultimately end up costing the business more in pre-litigation settlement demands or in litigation by the copyright owner. If a business is served with a cease and desist demand, immediate action, including consulting legal counsel, should be taken to deal with the issue.