Every business with a website –99 percent of businesses – wants their site to attract eyeballs and, ultimately, customers. They want their social media posts to pop. Photos and images are an essential part of website and social media engagement. The internet is full of millions of photos a company can easily download and upload to its website or include with its social media posts. But someone took those pictures and owns the rights to them. And if your business uses someone else’s photos without their permission, you expose yourself to a costly and disruptive copyright infringement claim.

Online Photos and Copyright Law

The photos you took of your family vacation, your dog, or one of your products – you own the copyright to all of them. This is the case even if you haven’t registered your copyright with the United States Copyright Office or used a © symbol or phrase such as “copyright-protected material” in connection with the photo.

The author or creator of a creative work – such as a book or article, movie, music, painting, or photograph – automatically and instantly obtains a copyright to that work upon its creation. Unless the photographer has assigned their rights to someone else, the photographer holds a copyright to the photo they took. While registering a copyright provides its owner with additional protections and rights under the law, a copyright owner has the right to control how their work is used and who uses it without affirmatively doing anything.

This includes the right to exclude others from reproducing or distributing the work or creating a “derivative work,” such as altering an existing copyrighted image with Photoshop or similar software. So, if a photographer stumbled upon one of their photos on your business’s website or in a post, they would have a valid claim for copyright infringement. Importantly, your state of mind when you uploaded the photo is irrelevant. Claiming you didn’t know you were infringing on someone’s rights is not a valid defense.

Things become even more treacherous if the image’s owner registered their photo or image with the Copyright Office. While the copyright owner can seek to recover any actual damages or losses they incurred because of the infringement, they can also obtain an award of damages from an infringer without showing they suffered any harm at all. They can seek to recover “statutory damages” from $750 to $30,000 per violation, along with their attorneys’ fees. Statutory damages for willful infringement can reach as much as $150,000 per act of infringement.

How to Avoid Copyright Infringement for Website Photos

Many claims of infringement for the unauthorized use of a copyrighted image on a commercial website are resolved without costly litigation by the user simply taking down the picture in response to a cease-and-desist letter. But there is no guarantee that the copyright owner won’t pursue the matter or demand a settlement payment to waive any infringement claims.

To avoid such problems, keep in mind these tips before uploading an image that you or your company did not create to your site:

• Always presume a digital image or photo you find on the internet is copyrighted.
• If you find a photo or image on the internet that you would like to use on your website, check to see if there is information about licensing or using the image on the site where you found it. If not, try to identify the copyright owner and ask them for a license.
• If you do obtain a license, pay attention to the fine print; be sure you are allowed to use it for your intended purpose. Some licenses only allow very limited use, and some specifically exclude commercial use i.e., on your business website.
• If you do not obtain a license or express permission to use an online image, do not use it. Train your staff and marketing department about these risks.
• If you work with a web developer or marketing company that posts content on your site or elsewhere, make sure you have an agreement in which they agree to indemnify you for any damages based on copyright infringement.

If you have questions about using photos, images, or art on your commercial website, please contact one of the copyright attorneys at The Dobrusin Law Firm.