being sued over a photo

Some years ago, digital marketing firm The Content Factory got an unpleasant surprise in the mail.

A lawyer summoned them to pay $8,000 in penalties for alleged copyright infringement. Why?

Well, one of their professional bloggers wrote a story about bargain hunting in Omaha, and used a photo of Nebraska. It wasn’t a great picture, and the article didn’t get much exposure, but that was beside the point.

The Content Factory did not obtain permission from the rights holder to use the image, and that was the problem. A very expensive problem!

What would you do if you were in their shoes? Take the photo down and apologize, hoping that would be the end of it? That sounds reasonable, right?

Forget that.

ENTER THE TROLLS

The enforcement of copyright is a billion dollar business. Companies like Masterfile and CEG TEK litigate against corporations, individuals, and small businesses who have intentionally or unintentionally used images without having obtained a license.

These companies (and individual lawyers) are commonly known as “copyright trolls.” They have sophisticated computer programs that search the web 24/7 to find copyrighted works that are used without authorization. They’re not only going after pictures. They’re also targeting illegal downloads of any kind, such as video games, music, porn, and movies.

Once they’ve secured the names and contact information of the people accused of infringement, the trolls will send out “litigation settlement” demand letters. These letters threaten defendants with costly lawsuits.

Of course the suit can go away, but only if you pay promptly. The longer you wait, the higher the amount you will be sued for. And if proven guilty, you’ll pay attorney fees too.

Now, is this blatant extortion of vulnerable people who simply made an honest mistake, or are these trolls in business to protect the rights holders?

I think it’s a bit of both.

According to copyright.gov:

“copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.”

Let’s say you’re a professional photographer, and your portfolio is on the web. You own the rights to these pictures, and you make a living selling them. Now, somewhere in a different state, a web designer is doing a Google image search for a website he’s building. He stumbles across one of your pictures, he takes a screenshot, and decides to use it.

In that moment you as the owner, lose value, because you could have sold the use of that image to the web designer. Under the law, you can claim monetary damages for financial losses, and for additional profits the infringer earned from using your photo.

That seems fair, doesn’t it? But copyright issues aren’t always cut and dried.

FAIR USE

Under certain circumstances people are allowed the unlicensed use of copyright-protected works. It’s because of a legal doctrine called “Fair Use.” For instance, making braille copies or audio recordings of books for the blind is considered “fair use.” Recording a TV show on your DVR, is also considered “fair use,” as long as it’s for private viewing.

The U.S. Copyright Act of 1976 allows the reproduction of authored works for the purpose of “criticism, comment, news reporting, teaching …, scholarship, or research.” There is a four-part Fair Use test based on the following factors:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. The effect of the use upon the potential market for, or value of, the copyrighted work

For instance, using short quotations or excerpts from published books authored by others, is “fair use.” Courts do evaluate fair use claims on a case-by-case basis.

PUBLIC DOMAIN

But what about if something is in the “public domain”? The public domain refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. These works may be used freely, and without permission.

There are four common ways that works arrive in the public domain:

the copyright has expired
the copyright owner failed to follow copyright renewal rules
the copyright owner deliberately placed it in the public domain, known as “dedication,” or
copyright law does not protect this type of work.

CREATIVE COMMONS

Creative Commons (CC), is an American nonprofit organization designed to foster the public domain, and it helps copyright owners dedicate their works to the public domain.

It provides free legal tools that give everyone from individual “user generated content” creators to major companies and institutions a standardized way to pre-clear usage rights to creative work they own the copyright to. CC licenses allow people to change their copyright terms from the default of “all rights reserved” to “some rights reserved.”

If you’re an artist, student, educator, scientist, or other creator looking for content that you can freely and legally use, there is a giant pool of CC-licensed creativity available. There are many millions of works – from songs and videos to scientific and academic content – that you can use under the terms of the CC copyright licenses.

WHAT THIS MEANS FOR YOU

First and foremost: it is your obligation to make sure that you have permission from the rights owner to use his or her images on your website, on your blog, and for your social media posts. This includes all the logos of companies you ever did voice-overs for!

Trademark owners might actually sue you for “dilution” of a trademark,” because your use might (in their opinion) lessen the uniqueness of the logo, and tarnish the brand’s reputation.

If your demos have music, make sure it is properly licensed. Copyright your own sound files if necessary, to secure payment, and to protect usage. And by the way, as long as your client has not paid you for your audio, you own it!

Attorney, actor, producer, and voice artist Robert Sciglimpaglia advises VO’s to trademark their brand, company name, website, slogans, and tag lines.

YOUR HOMEWORK

So, here’s what you should do.

Go over all the images on your website, your blog, and the ones you use on social media, and immediately delete the ones you have been using without permission. If in doubt: take them out!

Replace them with pictures from a subscription site like Shutterstock, from Creative Commons, Wikimedia Commons, or with pictures you took yourself.

Check the music and videos on your site, and get permission from the owners to use them.

Go to http://copyright.gov, and read up on copyright law. Learn about the difference between a trademark and a service mark, and click here to find out what you need to know to register a trademark. When you’re ready to register, hire an attorney like Rob to guide you through the process.

BEING SUED

Should you ever get sued over copyright infringement, know that the goal of most trolls is to obtain a settlement. They don’t want to bring their lawsuit to trial because they would have to prove the allegations. The only reason they even mention court, is to scare the living daylights out of you, hoping you will settle.

The website fightcopyrightrolls.com (a great resource in the public domain) warns:

“In order to increase settlement rate, trolls resort to lies. They conceal important information from the Court. They make unrealistic and unnecessary threats to defendants. They grossly overstate the damages to copyright holders caused by infringement.”

Get legal representation, and go over your options.

NEBRASKA

So what happened with the case of The Content Factory that had to pay thousands of dollars for the unauthorized use of one lousy photo? They hired a lawyer who negotiated a settlement. Instead of having to pay $8,000, they ended up paying $3,000 in penalties.

The Content Factory concludes:

“Had we been a smaller company and didn’t think to negotiate a settlement, we could’ve been put out of business. To be honest, had this happened within the first few months of starting the company, we would’ve probably closed up shop and run back to living one-third of our lives in cubicles, where it’s safe and there’s always health insurance.”

Don’t assume this won’t happen to you.

One of our colleagues is being sued as we speak over a lousy photo he put in his blog, and had forgotten about.

You have been warned!

PS Many thanks to Rob Sciglimpaglia for bringing matters of copyright and infringement to my attention, and for allowing me to use some of the information from his talk at VO Atlanta 2017. Rob is the author of Voice Over Legal, a must-have book for every voice actor. Click here to order a copy.

Image credit: EFF (Own work) [CC BY 3.0 us (http://creativecommons.org/licenses/by/3.0/us/deed.en)], via Wikimedia Commons