A Picture Is Worth a Thousand Words (and Potentially Thousands of Dollars in Statutory Damages)

In the time it took you to read this far, a new website was built (per Siteefy, a new site goes live every three seconds). More than 70% of all businesses have a website, and there are more than 600 million blogs on the internet. And every day, someone mindlessly adds a seemingly non-descript photo that they found on the internet to spruce up a post or page. STOP RIGHT THERE. Because if that photo you found happens to have been properly copyrighted, you are now exposed to potential liability for statutory damages of up to $30,000 for violation of the Copyright Act.

The mere fact that an image is readily found, accessed, and copied following a simple internet search does not mean that the image is “in the public domain” and thus does not mean that you are free to use or adapt that image. Moreover, you can be liable for copyright infringement even if the subject image lacks any clear indication that a copyright has been asserted (or by whom). And perhaps most sobering, opportunistic lawyers and artists are teaming up to take advantage of what is becoming an increasingly fertile landscape of infringement.

Indeed, there are now numerous firms that will scour the internet on behalf of copyright owners, use embedded metadata to find instances of unauthorized use, and then crank out demand letters to those that have used or are using the image without permission, seeking thousands of dollars from unsuspecting infringers, who are pressured to settle or face the prospect of an infringement lawsuit, through which, in addition to actual or statutory damages, there is a real possibility that they will also be saddled with paying the plaintiff’s legal fees which will generally far exceed the cost the infringer would have incurred if it had actually licensed the image in the first place.  

To be safe, create your own photos whenever possible, or subscribe to a service that will give you access to a library of stock images. And if you do get served with a demand or suit, contact counsel immediately. There are defenses and strategies that can be employed to limit your exposure, and a tactical means of disarming an overzealous counsel attempting to exploit the threat of exposure for weighty legal fees to leverage an unreasonably large payoff.