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I wanted to use this month’s newsletter to highlight a pitfall that a couple of contacts of mine have fallen into recently, and that is the use of images on the internet for social media, blogging, newsletters (ahem) and the like.
Now everyone likes a good read, but we all know that huge blocks of text can look very uninviting. So the usual practice is to pepper the article with images that have at least a degree of relevance to the subject at hand. Fortunately, there is a vast reserve of images on the internet, some of them printable, which can be searched quickly and easily. Then it only takes a few clicks to insert them into your document… and you’re good to go.
But beware. The first sign of trouble is a stern letter asking for a royalty payment. Many of these images are copyright, but in the past many didn’t take much notice of this – either through ignorance or because they thought that no-one would notice. Image searching is now much easier, though, and there are a number of companies whose business model is to reach agreements with photographers allowing them to enforce their copyrights on their behalf. They then run searches for the images in question, and send letters to anyone they can find using the images on a commercial website. We’ve seen requests for payment of between £500 and £3,000, depending on the context and the rate card that the company in question chooses to use as evidence.
We have helped a few recipients of these letters, but there is not a lot that can be done (although we tried, of course!). Generally, there is not much room to argue that there is no liability, as the evidence was there in public. The best bet is to negotiate the rate down as far as you can.
We have also helped a copyright owner in similar circumstances – she was an artist known for her portraits of animals, and a few of her portraits were fairly well known. So she was somewhat surprised to see that someone was selling hoodies with one of her works embroidered on the back – the infringer sold a range of hoodies and had obviously found the image via an online search. After some back and forth discussing whether the image was actually a copy (it clearly was!) we secured a payment and an undertaking from the infringer just in time for Christmas… our client was very pleased. In that case, we took action because the third party was clearly using the image to sell products – the image was a large part of the product’s value. However, we are seeing image rights companies chasing people where the image was purely an illustrative accompaniment to a blogpost, for example.
So far, we’ve only seen businesses being targeted, with personal blogging and social media staying very much in the wild west so far as image rights are concerned. There’s no legal basis for drawing that distinction, only a practical one in that businesses are presumed to have the funds to settle, and there is unlikely to be a PR backlash against image rights so long as the leave private users alone. It’s a possible minefield, though.
It is a little poignant that the same technology that allows us to find suitable images so easily is also allowing these companies to locate the infringements.
So what can you do about it? Well, there are a couple of things you can do;
First, I would suggest looking through any online publications that are still live to see if there are any images there that you didn’t take a licence for. If so, delete them immediately. You can look for legal replacements later.
Second, become acquainted with legal sources of good images.
Google Image Search allows you to limit the search by usage rights – click “settings” in the bottom right corner, then “advanced search”, and scroll down to “usage rights” – you want one of the “even commercially” settings. Beware, though – you are the one using the image, so you are the one who is liable if Google misinterprets the usage rights. I’ve seen copyright images appear in a “free to use” search, and it’s easy to see how that might happen.
A much better source is Unsplash; they provide a database of free-to-use images, mostly of a very high quality indeed. They prefer you to acknowledge the photographer, but don’t insist on it.
Or you can head for one of the image banks (stock photography), but expect to pay for it!
Why not use your own photos? Everyone now has a good camera with them all the time, or there may be someone in the office who is handy with a DSLR. That way, you also stand a chance of getting the exact image that you want.
Keep records of where you get your images from. If a request arrives, the onus will be on you to say where you got the image from and show you had the right to use it.
Stay safe!
If you have any questions relating to patents or trade marks, or wish to visit us in our new offices, please do get in touch.
Michael Downing.
