Now that we are living in the age of the internet, businesses are discovering the importance of marketing themselves online. However, some businesses are finding themselves in trouble under the US Copyright Act for inadvertently posting images or photographs on their websites without the proper permission to do so.
The following is a typical scenario in this area. First, a business goes to an internet marketing firm or a web designer to create a website to promote their products or services. The designer then inserts some photographs on the website that they found on Google or Yahoo! without checking to see if they were owned by someone or if they were in the public domain (i.e. free for anyone to use).
A few months or even years go by and the business receives a letter from an attorney or collection agency stating that the photographs being used on the website are actually owned by their client. The letter typically demands that the photographs be removed from the website and also that the business pay a certain amount as a fee for having used the photographs. In worst case scenarios, such demands may be in the hundreds of thousands of dollars. The letter also typically states that if the business does not comply, it will be sued under the Copyright Act.
Unfortunately for that business, even though it has not consciously done anything wrong, it is still subject to liability under the Copyright Act, which deems the unauthorized use of the photographs as copyright infringement. When infringement occurs, the Copyright Act provides several remedies to the owner of the photographs, including the recovery of what would have been the fee to use the photographs and a share of the infringer’s profits. In addition, if the photographs have actually been registered by the owner, they may recover attorney fees and other additional amounts. Generally speaking, these remedies are available whether or not the infringement was innocent or accidental and can be quite substantial.
As a result, if your business uses the internet for business purposes, it is imperative to ensure that all images or photographs being used are in the public domain or that you have the arranged for the proper authority or permission to use the images or photographs. I would also suggest that you place additional scrutiny on images or photographs you obtain for free. Additionally, because of the potential for liability under the Copyright Act, I strongly suggest consulting with an attorney with experience in these matters to consider your options if you receive a letter similar to the one described above. For more information, please visit the website for the US Copyright Office.
Matthew Grosh is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Villanova University and practices in a variety of areas including Business Law.