September 19, 2019
If you are in charge of running your business’ website, chances are you will be using a large number of images, photographs, and other visuals which have not been created by you.
Whether it is on your website, on social media, or in your newsletters, you will almost inevitably be relying on this third party generated content at some point.
It is important to remember that this content is subject to copyright, and so it is important to ensure that you have the appropriate permission (a licence) to use these works in the way you are.
Failing to do so could leave you liable for damages for the infringement of copyright, and you may find yourself receiving an angry letter from a photographer’s lawyers demanding substantial sums in compensation.
So what steps can you take to minimise this risk? This article should give you a basic understanding of key copyright considerations, and will give you some tips on dealing with situations which frequently arise.
Is this image subject to copyright?
In the vast majority of cases, the answer is yes. Copyright protection is automatic – which means no registration is needed – and the person who creates it immediately owns it.
For photographs, the photographer owns the images, regardless of subject matter. This means that the people who appear in an image have no rights in it (there are no Image Rights in the UK) and the photograph belongs to the photographer only.
Copyright is also granted irrespective of quality and talent (or lack thereof) – even if you think an image is trivial and common, or simply a terrible photograph, it is still protected by copyright.
How can I get a licence?
The starting point is that only the creator of an image can grant a valid licence, usually the photographer. In this case, you will have to approach the photographer directly and negotiate a licence fee. Make sure that you are fully transparent about the intended use of the image, as using it in other ways may cause you to have to pay additional licence fees.
Some photographers have licensed their images to databases and image banks such as Getty Images or Shutterstock. These sites have an easy to use tool in which you answer some questions about the proposed usage, and the site calculates your licence fee.
Can I use it freely if it’s in Google images?
No. Just because it is available online (Google images or elsewhere) does not mean you have a licence to download and use it in any way.
Is crediting a photographer enough?
No – this is a common misconception.
Sometimes however you will need to credit the photographer even if you have paid a licence fee (due to his or her moral rights), but in any event this is not sufficient to allow you to use the image without a licence.
How can a photographer know I have used their images?
We are seeing more and more online service providers which allow photographers to upload their portfolio, and which then use an algorithm to find any instances of online use of these images, no matter how trivial or discrete.
Once this unauthorised use has been identified, a legal letter demanding a licence fee and damages is usually not far behind…
I have received a Cease & Desist letter demanding damages. Now what?
If you do receive a letter informing you of an infringement, don’t panic – but don’t ignore it either. It may be worth acknowledging receipt and requesting additional time to respond, as these letters usually give you 14 days.
You may want to seek legal advice – Briffa can assist and review the letter and suggest next steps, and this preliminary consultation is free so you don’t need to worry about legal fees just yet. There may be a fixed fee for drafting a response if this is required, but this would be discussed during the initial meeting.
In some cases, involving lawyers is not cost-effective. If the licence fee they are demanding is £500, it may be pointless paying a lawyer £700 to draft an aggressive legal response.
In these cases, we recommend making a lower counter-offer in the first instance – this is often accepted by the other side, and may allow you to put the whole matter to bed quickly and (relatively!) painlessly.
What can I do to avoid infringements altogether?
The easiest way to ensure you are not infringing anyone’s copyright would be to use only images which you have created yourself, or which were created by an employee of your organisation in the course of their employment.
This may of course impractical or impossible to implement. It is necessary therefore to ensure that you have the right licences in place for those images you are using.
There are some websites and databases which offer images which are “free of copyright” or “royalty-free” licences, from which it is possible to take images. We would always recommend keeping a written record that you took an image from such sites, so that you could later show, if required, that at the time you downloaded the image, you were lawfully authorised to do so.
It is also crucial to ensure that you are complying with the terms and conditions of these sites – it may be that you are allowed to use the images on your website and marketing materials, but other commercial usages may be expressly prohibited.
If you are using a commercial image database, you need to ensure that you are completely honest and transparent about the proposed usage of the images you are downloading, and later double check that you are not changing or extending the usage in a way that exceeds the licence.
Always make sure you keep a record of licences (and their limitations), and ensure that if you entrust the day to day running of your website, social media activities, or newsletter to someone within your organisation, that they are aware of the limitations in place with any licences.
Finally, it is advisable to conduct regular reviews of the images you are using, to make sure that you are aware of the source of these images. This will allow you to periodically confirm that you are doing everything you can to keep your risk of infringement as low as possible.
Of course, if you would like to discuss any of this in more detail or if you have already received a threat of legal action which you would like some preliminary legal advice on, please feel free to contact us here at Briffa – we are always on hand to help.
Written by Joshua Schuermann, Solicitor
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