How To Avoid Copyright Infringement in the Digital Age

In the digital age photos are constantly being reposted on social media and pulled from the Internet but what most people do not realize or care about before sharing with their followers, posting on their website or using for marketing materials, is that most of these images are protected by copyright laws.

If you use someone’s work that is protected by copyright law without permission that is considered copyright infringement. It’s imperative that anyone in business, or anyone sourcing images really, has a basic understanding of copyright laws because no matter how accidental an infringement may be you can still be held liable if you use a copyrighted image without permission.

On the flip side copyrights are also a valuable tool for businesses to protect their assets. To help get a better understanding of copyright infringement the following guide breaks down the laws, explains how to tell if an image is copyrighted and what to look out for.

What Is Online Copyright Infringement?

• Placing a copyrighted photograph on your website without the authority of the copyright owner is generally an infringement of the copyright owner’s exclusive rights of reproduction, public display and/or distribution.
• A copyright holder generally has a legal right to damages for the infringement of a work. This is the case regardless of how long the infringement lasted, whether the infringer acted innocently or in bad faith, whether the infringer made any money from exploitation of the work, or whether the infringement is on-going.

What Photographs Are Copyrighted?

• A photograph is generally protected by federal copyright law upon creation and can be infringed even if the person who used it without permission did not know it was copyrighted.
• Many rights owners include the symbol © to emphasize that that work is protected by copyright and that all rights are reserved. However, copyright owners are not required to provide notice.
• Remember that a photograph is not available for free or unauthorized public use simply because it does not have a copyright notice or because it is not easy to track down the copyright owner.

Is It Infringement if I Didn’t Know I Had to License the Photo?

• Yes, innocent infringement of a photograph is still copyright infringement.
• Copyright infringement is strict liability, which means that your state of mind in committing an infringement is completely irrelevant under the law for the purposes of determining whether or not you must pay damages.
• Infringement occurs whether an individual acts with bad faith or complete innocence. Anyone found to have infringed a copyrighted work, even if accidental, may be liable for statutory damages up to $30,000 for each work infringed. If a willful infringement is proven the amount may be increased up to $150,000 for each work infringed.

Did I Infringe if Someone Else Built My Website?

• Yes, it is still infringement even if the photograph is initially selected by your web developer.
• By placing the photograph on a website, a website owner directly infringes a copyright holder’s exclusive rights of public display, reproduction, and/or distribution. And, since copyright infringement is a strict liability violation, whether you or your website developer knew the photograph was copyrighted is legally irrelevant to establishing liability.

What Is Public Domain? Are Images Found on Google or Social Media Platforms in the Public Domain?

• The public domain refers to works outside of copyright protection that are available to the public.
• A work enters the public domain only under a limited number of circumstances, including because the copyright has expired, because the copyright owner voluntarily abandoned it, or because it is a federal government work.
• Know that a work is not in the public domain and remains protected regardless of whether it is published on paper or digitally or available on the Internet.

What is a Photo License?

• The Picture Licensing Universal System (PLUS) is a non-profit initiative created to help users and creators clarify and standardize the image licensing process. PLUS defines licensing as "A legal agreement granting permission to exercise a specified right or rights to a work, often encompassed in an invoice, or the act of granting same." (http://www.useplus.com)
• To be safe and avoid the risk of infringement liability, you should always obtain a license prior to using an image.

What is Fair Use?

• Fair use is an affirmative defense to copyright infringement that allows the use of copyrighted works without authorization of or payment to copyright owners under certain limited circumstances, particularly in situations of commentary and criticism. (https://fairuse.stanford.edu/overview/fair-use/)
• Fair use is a notoriously grey area of the Copyright Act and one that creates a lot of confusion in the marketplace. Given that seasoned copyright attorneys may differ on whether or not any given use is fair use, you are taking a risk in assuming that your use may be considered fair use.