Why would copywriters at Webcopyplus pay $4,000 for a digital photo that retails for about $10? Well, frankly, we screwed up. It’s an expensive lesson on copyright laws that we wish to share with other marketers, so you don’t make the same mistake.
Our web copywriters were under the impression that images on the Web without any copyright notices were “public domain” and therefore free to use. Naive? Yes. A notion limited to our copywriting firm? Definitely not. It likely has to do with the fact that works no longer need a copyright notice to have copyright protection (you can read about the Berne Convention Implementation Act, which the US adopted in 1988).
Designers, writers, developers, marketers, business owners, and ironically even photographers, use photos from the Web without permission. Sites like Google make it so convenient. Enter your keywords, do an image search, and you’ve got an endless photo library ripe for the picking. Woman laughing delivers 5.2 million photos. Business man offers 423 million photos. And the keyword kids brings up a whopping 778 million images. You can find pretty well anything, too, from ABBA to zombies.
The Copyright Crime
While we maintained an active stock photo account for our blog with access to an array of suitable photos, one of our copywriters grabbed a photo from the Web. The image: a colour 400 x 300 pixel beach shot with some greenery in the foreground. A nice shot, but nothing spectacular.
We posted it on a client’s tourism blog to add zest to a promotional article — done. Sip some caffeine, get a little Twitter action, and then dive into the next copywriting project. Photo forgotten. That was in May, 2010.
The Lawyer’s Letter
Fast forward a few months, we got a call from the client a couple of days before Christmas, and he wasn’t feeling overly festive. He received a formal letter from a lawyer with the following introduction: “Cease and desist demand and offer to settle copyright infringement claim, and digital millennium copyright act claim, subject to Rule 408, Federal Rules of Evidence.”
Apparently copyright infringement involving images that are registered with the U.S. Copyright Office allows for statutory damages of up to $30,000, or $150,000 if it can be demonstrated it was a willful act.
The Lawyer’s Demands:
1. Immediately cease and desist all unlicensed uses of the image, and delete all copies from computers and digital storage devices.
2. Remit almost $4,000 to his trust account.
The image was removed within minutes. Lengthy discussions ensued. Two days later, a letter of apology was emailed to the lawyer to advise the photo had been immediately removed, and to express regret for the “unintentional errant use” of the image.
The lawyer responded that while they appreciated our commitment to remove the image from the blog, “removal of the image from the website will not relieve you from liability for damages arising from your past infringing use of the image on your commercial website.” The letter also stated that any further attorneys’ fees and costs incurred to resolve the matter would be added to the settlement demand.
The Defendant’s Response
With some pro bono legal advice, a copy of the Certificate of Registration and the date that the image was first published was requested. While the letter contained all sorts of legal jargon, it failed to verify the image was copyright registered and that the lawyer’s client, a photographer, owned the rights to the image.
A few notes were exchanged, and by entering a registration number at the U.S. Copyright Office’s website (www.copyright.gov), we were able to confirm the image was copyright registered and the lawyer’s client was the rightful owner. Shortly after, we provided a counter offer of $1,925, which we figured would provide the photographer about $100 per month, and the lawyer three-hours’ pay at a lofty $400 per hour. We felt that was generous and more than fair to make this problem go away.
They declined, and due to the exchange of letters (while respectful in nature and completely reasonable, considering we were merely asking for registration and ownership proof), the lawyer slapped on an extra $2,500 in attorney fees, which he subsequently agreed to remove.
Had the lawyer engaged Webcopyplus, in which case our client wouldn’t be caught in the middle, we would have had options: ignore the letter; say, “Go ahead, sue us”; or respond, “$1,925 is our final offer,” which there’s a chance they’d accept. We felt — and photographers we spoke to agreed — the proposed settlement amount was excessive.
In fact, you can find articles and discussions online on how lawyers around the globe are capitalizing in technologies and laws to bring in piles of claims for copyright infringement damages. For example, check out Copyright Lawsuits as a Business Model.
While we considered the lawyer’s demands abusive, the fact remained that our client was trapped in the ordeal, and it was costing him time and causing him grief. Plus, he’d be the one to get subpoenaed. So we opted to settle for $4,000.
It was a tough pill to swallow, but we were the ones who messed up, and salvaging the client relationship was priority. Moreover, settling the matter would allow us to focus on writing copy to market and sell products and services, and build productive relationships, rather than deal with an aggressive lawyer.
As web copywriters, we work with dozens of web designers around the globe. Based on recent discussions, even after we shared our story, some continue to suggest copyright laws are blurry, and insist if you ever run into conflict and get a threatening letter, you can simply delete the image and toss the document in the trash (one designer even labeled it “delete and toss”).
While this might work with some individuals and organizations, particularly if they’re in a different province, state or country, which might make legal costs prohibitive, be aware: you could end up in a lengthy and costly court battle. For those who insist, “It won’t happen to me,” mind the fact that this beach photo was the only one we’ve ever grabbed from the Web for a client’s website. And it cost us almost $4,000. Consequently, we urge others to recognize and yield to a simple fact: If it’s on the Internet and others wrote or created it, do not use it without their permission.
As copywriters, we work with and rely on a range of creative types and specialists, including photographers. We didn’t mean any disregard for this profession and now have a greater awareness and appreciation for the fact that freely using photos from the Web diminishes a photographer’s income and livelihood. We apologize, and it won’t happen again.
We’re copywriters — not copyrighters — so this is meant to share our experience, not to provide formal legal advice. However, there’s a lot of useful copyright information on the Internet, which you can check out.
Fair Use — If you’re using copyrighted work for teaching or research, criticism or comment, or news reporting, it may be considered fair use.
Berne Convention Implementation Act of 1988 — The US adopted the Berne Convention for the Protection of Literary and Artistic Works, an international agreement governing copyright that was initially established in Berne, Switzerland in 1886.
10 Big Myths About Copyright Explained — Techie and photographer Brad Templeton touches on common copyright myths.
Free and Commercial Stock Photography Sources
As part of our updated policies, our copywriters are required to only use stock photo websites in a bid to play by the rules, be fair to photographers, and keep lawyers out of the equation. Here’s a list of stock photo sources you might want to consider, where you can get photos starting at $1 per image:
*For the record, the Pixmac link is an affiliate link (so we can recoup some of the settlement costs and support our caffeine addictions). It’s a relatively new company with 11 million images to choose from, at affordable prices.
Some photographers let people share and use photographs under Creative Commons licenses, which is an alternative to full copyright (special thanks to Vancouver photographer Kris Krug, who brought this to our attention). You can find millions of Creative Commons photos at Flickr.
Update: Another good information source is the Canadian Intellectual Property Office.