Programming - - By Daniel Foster

Google Search by Image: The New Sheriff in Town

Call it what you want, but there isn’t a webmaster out there who hasn’t “borrowed” an image at least once. Maybe you just didn’t have the time to scour through Flickr for a free-use photo, or perhaps there was one particular image you just had to have. Given the virtually infinite number of photos on the web and small presence of most sites, who would ever expect to get caught?

Last June, Google quietly introduced a new feature called Search by Image. This search tool provides a powerful reverse image search service similar to TinEye, but with more robust results. Search by Image finds copies of images at the usual Google speed. Simply upload a photo or paste a URL and Search by Image will pull up all the sites using the photo, including modified and resized versions. Google touts its new search feature as a “jumping off point to explore, examine and discover.”

Sounds great, right? Well, what if a photographer wants to “explore, examine and discover” unauthorized use of his photos, i.e. the adorable cat photo you just couldn’t do without? The Wild West Web isn’t quite so wild any more. The chances of being held accountable for misusing photos are higher than ever. Webmasters and bloggers should take  a careful look at how they use intellectual property and consider the potential liabilities for misuse.

What Counts as Unauthorized Use?

To keep things simple, if you use something without permission, you’re committing copyright infringement. This of course excludes images in the public domain or under a Creative Commons license. A photo does not have to say “Copyright 2012” for it to be subject to copyright. Intellectual property is protected by copyright law as soon as it’s created, regardless of whether or not the owner registers a copyright or displays a copyright notice.

Searching for Creative Commons photos on Flickr is the easiest way to find high-quality photos of everything and anything for your site. Just remember that you must obey the terms of the license, which require you to credit the author and may exclude commercial use. Creative Commons licenses terminate for the user upon any breach of terms. Websites that use Creative Commons content but don’t credit the author are committing copyright infringement– it’s as if the CC license never existed at all.

What Do I Have to Lose?

Many website owners, especially bloggers, don’t feel liable for copyright infringement because they think the use is “not-for-profit” and/or unintentional Such was the case a few weeks ago when I contacted a blog network about its unauthorized use of a portrait of me. I sent a friendly email requesting a steep but fair license fee from the blog network, which likely earns millions a year in advertising revenue. The legal representative I spoke with, who should have been well-versed in copyright law, had the audacity to tell me I was owed nothing because her company’s use was “not-for-profit,” but also because of the exposure my work received!

In the end, we agreed on a modest settlement, but this is something that never should have happened. A few minutes of searching for a Creative Commons photo and correct use of the license could have saved the company several hundred dollars. Under US copyright law, a registered copyright holder is entitled to a minimum of $750- $30,000 per infringement. Image owners with unregistered copyrights (the vast majority of web images), may only collect actual damages or profits (see 17 USC § 504)

Note that the burden of proof for actual damages is relative low. An image owner could use a standard licensing fee as damages (which could run several hundred dollars), but only has to prove  gross revenue (not revenue directly from the image) to receive damages. An image owner can subpoena you for earnings records. Seeing as even basic legal services cost $100 or more per hour, it’s probably in your interest to settle copyright infringement claims privately, even if you end up paying a few hundred dollars for a $4 stock photo with no registered copyright.

The point is, you should spend your time blogging and building your business, not dealing with litigious photographers. The statute of limitations for copyright infringement is normally three years after the event in question, but since Internet publication is an ongoing event (new copies are created whenever someone loads a page),  the statute of limitations doesn’t expire until three years after an infringing work is taken down from the Internet. As a website owner, this generally means you’re liable for any image you ever published without permission. And with Google Search by Image, it’s easier than ever for image owners to find you. What wasn’t a big deal in 2005 should be a major concern for webmasters in 2012.

Take Action Now to Avoid Liability

Your first step should be to take down any copyrighted photos on your site. Luckily, there are more Creative Commons and public domain photos available than ever before. You can find great photos for your digital works without breaking copyright law. It might take a few more minutes, but you want to spend your days maintaining a great website, not fighting copyright infringement claims, right?

Just because you’re careful about copyright law doesn’t mean everyone else you work with is. Consider what else you can do to cast an umbrella of protection. Make sure your contributors understand what’s at stake. If you outsource web design, make sure your designer has obtained proper authorization for any included pictures. I’m dealing with a situation right now where a web designer included one of my photos without permission in a design. I don’t think the client will be amused.

Keep in mind you can always ask image owners for permission. I enjoy seeing blogs and other sites use my photos, which is why I license many of my images under Creative Commons. Webmasters have both an ethical and legal obligation to ask for permission when necessary and follow Creative Commons license terms.
So, why not take a few minutes to take care of any “borrowed” photos? Hopefully this sort of content doesn’t make up a large portion of your website. There’s a new sheriff in town, and his name is Google Search by Image.

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