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Is Using Others' Photos Copyright Infringement?
April 13, 2016

By David H. Bowser

In this digital age, we all feel pressured to have a web page and to put out content on social media (just like I’m doing now). While embracing new technology is sound business practice, we must always be aware that almost any act we take today can lead to liability if done incorrectly. For instance, let’s say that in putting together that company web page, the IT person you hired or one of your technologically savvy employees cuts and pastes an image. There is nothing on the image that says it’s copyrighted.  There is no “©.” You did not intend to infringe anyone’s rights. It was just a snappy picture to brighten up your digital canvas.

A long time passes and nothing happens. Then one day it comes. A letter from an attorney telling you that you have infringed their client’s copyright by putting that photo onto your website. They demand money. They threaten you with up to $30,000 per work infringed, $150,000 if willful, and that you will have to pay their attorney fee too. Those are real numbers supported by the Copyright Act. What do you do? First, get the photo off of your website immediately. If you did not personally take the photo, assume it should not be there.  This demonstrates good faith on your part. Second, take a deep breath and involve your attorney. A claim for copyright infringement does not require a showing that you intended to infringe. Innocent infringement is not a defense, but what you can do is minimize your damages by having them prove the copyright is registered if they have not already supplied that information (it has to be registered to seek statutory damages). If not registered, they have to prove actual damages, which can be hard to do. If true, argue that any infringement was innocent. Argue that the statute allows at the low end $750 per violation and as low as $200 if the Court finds the infringement innocent. Offer a reasonable amount in this ballpark and be sure to get a full release. The moral of the story, be careful what you put on your website. Your smart phone can take some amazing pictures in this day and age, and you clearly own those photos.
 



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