In recent years, I have noticed an insurgence of letters from lawyers accusing clients of infringing photographer copyrights based on relatively innocuous uses of photographs on company websites or social media outlets. In some cases, I have even seen complaints filed in federal court. These lawyers, some referred to as copyright trolls, seek monetary settlements. In many cases, clients or their insurance carriers pay without too much resistance in the interest of going back about their business.
In order to avoid having to deal with this type of situation, here are some things you can do:
- Train your employees who are involved in advertising and marketing on your website and social media accounts on how to use graphic images without worrying about copyright infringement. This may be done by an in-house lawyer or outside counsel, or you may find online modules that provide this type of training.
- Establish an internal process or ensure that any photograph you display on your website or post on social media in connection with your business is either a) owned by your company or b) licensed for its use.
- Use photos that are made available by websites that have cleared the copyrights and offer photos you can use without risk. A recent article appears here that lists several sites that offer this service.
- If you want to use a photograph and you know who owns the copyright, you can always contact that person to obtain a license.
If you find yourself in the irritating situation of having received a letter from a copyright troll, or even a complaint, here are some things to consider:
- If your company has an in-house lawyer or outside counsel you work with who is familiar with copyright, ask them what to do. They may have some good guidance for you.
- Many of the lawyers that send these letters do so on behalf of photographers who do not have registered copyrights in the works at issue. Copyright registration enables owners to seek statutory damages for infringement, which does not require them to prove actual damages. This is used as a scare tactic. If no registration is cited, you can always ask the sender of the letter to provide one to see if this is the case. This is best done through counsel.
- Most companies have general liability insurance policies that include coverage for advertising injury, which may cover these types of claims. If you are worried about the risk of paying a settlement you think is unwarranted based on your use of a photo, or litigation, you can notify your insurance company and file a claim. They are familiar with this type of thing and will be able to handle it for you if you’d rather not. If you are concerned about how that might affect your future coverage, you can always ask.
- If your use is non-commercial in nature, or you have a license, you can respond by denying any claim of infringement. This is best accomplished with the assistance of counsel.
Copyright is designed to protect the rights of creators of works such as photos and graphics, which are important to protect. Unfortunately, there are people out there who take advantage of the law to do nothing more than disrupt businesses and extract settlements from unknowing companies. It is best to understand how to avoid violating any third-party rights so your business can run more smoothly.
ABOUT SCOTT LLOYD
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Scott Lloyd is a registered patent attorney who specializes in intellectual property counseling and commercialization work. He has served as a technology commercialization specialist and advisor to companies in a diverse array of markets, including biotechnology, pharmaceuticals, medical devices, food and beverage, specialty chemicals, technology, and engineering. In addition, Mr. Lloyd spent ten years as in-house general counsel to small and mid-sized companies, where he managed corporate matters and resolved commercial disputes in addition to intellectual property strategy, and now serves in the same capacity for entrepreneurial clients. He serves as counsel to small and mid-sized business owners seeking to implement growth strategies and succession plans.
While in-house, Mr. Lloyd has also contributed to the successful formation of international affiliates of domestic businesses as well as a $400,000,000 business acquisition.
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