There’s nothing more terrifying to a client – or more embarrassing to your agency – than receiving a cease and desist letter, often demanding a large settlement, for alleged copyright infringement.
To avoid potential litigation, crippling settlements, and loss of credibility- refresh yourself with a basic copyright guideline and avoid common pitfalls.
It’s important to note that while I have extensive copyright experience, I am not a lawyer. Any advice or opinions are purely for your consideration.
Basic copyright law broken down so us normal folk can understand:
#1: What is copyright?
Legal protection given to content (photos, music, video, writing, etc.) creators for the unauthorized use or duplication of their content.
#2: Where does it apply?
Even if the content has not been copyrighted (legally registered), that doesn’t mean it is free to use or in the public domain. Protection is available to both published and unpublished works.
#3: Is there such thing as a Global Copyright?
No. Every country enforced their own copyright laws.
While treaties exist between some countries that support one another’s law, each country has their own rules. One common theme rings true: if you don’t own a license, you can’t use it.
#4: But what if I was unaware of the infringement?
Ignorance is not an excuse and you will be held liable, whether the infringement was intentional or not.
#5: Who is held responsible for the infringement?
The legal owner of the website. Even if the owner hired a designer / developer, the website owner is responsible for everything on that site.
That’s not to say an owner won’t turn around and hold a developer responsible in a separate civil case, if the infringement was the developer’s fault.
In regards to the Internet specifically, here is what is protected under U.S. Copyright Law:
- Original text
- HTML, code, and any other unique markup language sequences
- All other unique elements that make up the original nature of the material
#6: While creating a website, these are the things you CANNOT do:
- Put the contents of another person or organization’s website on your site. You CAN quote or paraphrase limited amounts, if you give credit to the original source and the location of the source.
- Incorporate other people’s electronic material, such as e-mail, in your own document, without permission.
- Forward someone’s e-mail to another recipient without permission.
- Change the context or edit someone else’s digital correspondence in a way which changes the meaning.
- Duplicate logos, icons, graphics, photographs, videos, and music from other websites to your site.
Scared to death yet?
Feel like your hands are tied?
#7: Here are the five common licensing terms you’ll come across:
Freeware – copyrighted, free to use software. You are allowed to share, but you cannot manipulate or sell without consent.
Shareware – copyrighted, free to use software, however a donation is expected for continued use and support. Accreditation must be given and you are allowed to duplicate / share without consent.
Fair Use – allows copyrighted works to used without permission in a limited way for educational purposes and review.
The application cannot negatively affect the economic interests of the copyright holder. For instance, you can write a review of the image, but you can’t post the actual image for others to view.
Beware, Fair Use laws are vague and open to a lot of interpretation, though courts generally rule in favor of the copyright owner.
Creative Commons – free to use but you MUST follow the rules of license. You must always attribute the creator. Some content may be modified, some may not. Some may require that you allow others to equally share your new modified work. Some licenses allow commercial use, most do not.
Public Domain – This includes facts, ideas, and methods of operation. It also covers creative works whose copyright has expired (i.e. Mark Twain novels).
Also any works created by a U.S. Government employee within the scope of their employment. This includes works such as NASA photos and images from the Official White House Press Photographer.
#8: That’s all great, but how can you create a fantastic looking website filled with rich photography and graphics?
a). Create your own
Generating and creating your own content is the safest way to protect yourself, and is becoming increasingly easier and less expensive to produce as technology develops.
Most of us own smart phones, point and shoot digital cameras, and have some form of photo editing software.
With an old lamp, and a few, free photographic lighting lessons, you can begin to develop a stock photography library that you will be able to use throughout your career.
You could even consider selling and licensing your images to others who aren’t as ambitious.
b). If you’re a freelancer, dedicate 1 day a month to taking photos
Just be aware of your background and lighting, and take simple images of calculators, telephones, speakers, mobile phones, handshakes, money, etc.
It can save you a lot of money and heartache in the long run.
c). Contact a photographer directly
Establish a relationship with a photographer and obtain a license in writing allowing you to use their image(s). There are plenty of amateurs on Instagram and DeviantArt that would be honored for the exposure.
d). Stock photography websites
This is scary because you’re not only paying, but relying on a third party to provide legally licensed images. However, if you read almost any microstock photography website’s terms and conditions (even the big ones), you’ll find that they release themselves from any legal responsibility concerning your use of the image.
Even if you purchased an image, you could still be held liable for copyright infringement, if the microstock company you purchased from didn’t originally obtain that image properly / legally.
Remember, sole responsibility of infringement rests on the owner of the website. The court of law has no sympathy for ignorance.
Claiming that you didn’t know that the microstock company was selling an illegal image, or even scamming you, will not work as a defense.
Moreover, you released the microstock company from all legal responsibility when you agreed to their terms and conditions when you downloaded the image from their website.
With this said, there are multiple scams on the internet that sell illegal photos. There are also many companies that try to bait you into infringement settlements without ever legally owning the image themselves.
This isn’t pure paranoia.
Google any of the largest stock photography companies, — Getty Images and Corbis — and you’ll find photographers suing these companies over photos that were never licensed to their databases. Even Getty Images threatened litigation to website owners over images they don’t properly own.
#9: Ok. So, who can you trust?
I’m not going to be cynical and say no one. But I am going to encourage you to:
- keep your receipts and invoices
Having documentation will only help should an issue arise down the road.
So you know, there is not an “official” public domain database.
While sites can compile public domain images, buyer beware of sites claiming public domain. You’re relying on the honesty and accuracy of the database owner to properly vet their work.
Below are a few microstock sites that I have found to be reasonably priced and have heard limited complaints over:
Promoted as “The First Microstock Site to Guarantee its images are Legally Safe to Use.” They also back that up with a 25,000 dolloar indemnification policy, paying legal fees and damages should you be threatened or sued.
Still owned by its founder and offers to cover up to 10,000 dollars in indemnification.
A nice sentiment, and may work for settlements, but in reality $10,000 won’t come close in covering legal fees.
If you like to live on the edge (and who doesn’t), this is my favorite microstock site. The artists get paid the highest percentage among all reputable sites and the artist sets the price of their own work leading to a lot of deals.
#10: One final thing to consider when developing a website:
Be extremely careful when using photos from or included in a template. Even if you paid for the template, you are buying the code and layout, not the images. Those images are not licensed to you or to the new website you are creating. Often those photos and graphics were licensed to the original template author ONLY, and are used to “demonstrate” what typical content might looks like in the template.
Now that probably feels like you just got out of a workplace harassment seminar and can’t even say hi to a co-worker, here’s the golden rule to live by:
Create the content yourself.
If you can’t, make sure you have acquired the proper license and have it in writing.
I know that Google Images is so easy and tempting, but it’s not worth it.
While Google’s new “Creative Commons Search” feature might be a good place to start, the burden of proving that the image has been accurately tagged Creative Commons (and which license it falls under) rests on you.
Remember, not all Creative Commons licenses allow commercial use.
“There’s some fine print, of course. This feature identifies images that are tagged with licenses that authorize reuse. You’ll still have to verify that the licensing information is accurate. We can help you take the first step towards finding these images, but we can’t guarantee that the content we linked to is actually in the public domain, or available under the license.”
Keep in mind: Photo matching and recognition software is better than ever and it’s only a matter of time before the robots match up infractions.
Some even speculate that companies such as Getty Images, actually bait search engines with false information to generate fresh copyright settlements, instead of selling images.
It’s certainly more in their financial interests to find and capitalize upon possible infringements, than it is to properly vet databases and eliminate it.
Be mindful of the common mistakes and take the proper precautions to protect you and your clients.
There’s nothing more upsetting than seeing a threatening looking letter demanding thousands of dollars in settlement.
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