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If an image has no copyright or watermark what are my responsibilities to find out if it is copyrighted before using it?

Accord, NY |

I used a photo from a Google search on Facebook that had no copyright symbol, watermarks or artist credit, although I looked. Now, a year later, some company (seemingly legit.) says I owe the photographer $500. This photo appears in many places on the web, but nowhere that I could see was the photographer given credit and there was no indication of a copyright. Once this law firm (?) gave me the photographer's name I located a UK newspaper source showing he won a photo contest and I assume that is the source of the original photo that is now spread all over the web. Telling me I owe $500 is like saying I missed the invisible price tag on the item I found on the street. Do I have any legal standing here?

Attorney Answers 6

Posted

Your situation is not new and there appears to be good news, and bad news:

Good news, immediately removing the image from your site will prevent willful copyright infringement claims by this copyright holder.

Bad news, copyright infringement is a strict statutory crime punishable by anywhere from $750 to $thousands in penalties, even if the infringer did not know the work was copyrighted (although "innocent infringement" can mitigate the penalties).

Good news, you are not ignoring the letter you received (and this has become a rampant scourge across the internet where literally thousands are being threatened with lawsuits (Getty Images famously) and they almost always leads to a lawsuit, where attorney fees start adding up.

Bad news, you are one of those thousands.

Good news, an attorney may help you... somewhat: a claim of innocent infringement can greatly mitigate the statutory damages One could also consider enjoining the owner of the website where you first obtained the copyrighted image, to force them to pay their fair share (100%?), and they in turn can enjoin their source, etc, until this crazy pursuit of balance between visible copyright identification and protection is achieved. Maybe your simple "innocent infringement" would not be worth the effort for them to enforce. All these seem costly pursuits to me.

Bad news, again, you are one of the thousands reeiving these "settlement offers."

I am eager to see what more experienced attorneys may offer.

Good luck.

My disclaimer is simply that Avvo already has an adequate disclaimer.

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Bruce E. Burdick

Bruce E. Burdick

Posted

I am guessing that the code for this electronic picture has an embedded copyright notice. However, that may or not be sufficient to be statutory notice such as to get enhanced "statutory" damages.

Posted

You've probably got no good legal argument. This isn't a standing issue, which refers to your right to be in court.

Copyright infringement is a "strict liability" tort. That means your intent doesn't matter. It means that you've got _all_ the responsibility to find out who owns something before you use it.

Just because something's "public" in the sense that it's displayed on the internet doesn't mean it's "public domain." In fact, most everything on the internet is owned by someone, and _not_ available for others to take and use as they like.

You seem to think that copyright notice is prerequisite to finding liability. It's not, but it would certainly help you fight any claim of "willfulness" of there was one. Here, it's clear that a demand for only $500 doesn't assume your use was willful, in the face of their clear rights.

$500 is a relatively cheap lesson. Ask the law firm to provide you with a copy of the copyright certificate and any assignment to any stock photography gallery, if that's who's making the claim, rather than the photographer themself. Then once you pay, make sure you get a written release and maybe a license to use the photo in the future, if $500 is what they get for licenses.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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Asker

Posted

I will ask for the certificate. If I could actually find the photographer I would offer him a settlement, but less than what is being requested. I think there needs to be some form of warning created in cases like this where no disrespect, attempt at profit or theft was intended. I know it doesn't matter, but the irony is I used the image to promote the very environmental cause the photographer was originally promoting when he took the photo. I guess no good deed goes unpunished. Thank you for taking the time to help me, I really appreciate it.

Pamela Koslyn

Pamela Koslyn

Posted

Yeah it's ironic. If the law firm is representing the photographer, mention that when you negotiate for a license, that you're on the same side as their client, environmental-wise. Realize that strict liability offenses don't consider intent. That's why it's called _strict liability. The same doctrine applies to defective products -- the manufactures don't mean to injure people, but they do, so they pay.

Asker

Posted

The company doing the suing is ImageRights International in MA and apparently this is all they do. I'm not expecting compassion and I assume we will settle, but now I have no interest in a license to use the image. I would rather draw my own stick figures with crayons than give this photographer any favorable publicity. I'm also going to go through my FB business page and delete anything that might make this happen again, even where I have links to artists' sites so people can buy their work. Thank you again. I am really impressed with how helpful everyone has been here.

Asker

Posted

I thought you might be interested in a follow-up. I tracked down the photographer (with great difficulty) and asked him if he would be willing to settle with me directly. He was polite but asked me to deal with his law firm, which I then did. We settled on a slightly less amount, but still a big chunk of money to someone like me. I had a hard time finding the photographer because he had no website or place on-line to buy his images. Since I once had an artist thank me for using one of her images AND linking it back to her site where people could buy prints (she apparently sold a bunch a prints from my post), I asked him about creating a website where people could buy the image either for publishing use or as a print. It would also clearly mark the work as owned. At the time he just sort of dismissed the idea as "not necessary". I did some serious detective work and back tracked the unauthorized use of the image around the web via Google and TinEye. I found about two dozen places where the image had been removed, including the site where mine was copied from and claimed their images were copyright free (FYI: they also got sued). However, now that all the illegal images are down he has recently employed a service to offer the use of his photos starting at about $100 and the images are clearly watermarked. I think he waited to collect on all the wrongly, but innocently, used photos before putting up an obvious "stop sign". I don't think he plotted to sue over unmarked photos, but once it became apparent there was money to be collected he marched forward with legal guns blazing. I am now writing to my congressman to look at this problem. I think there needs to be a system in place where artists get paid, but innocent (ignorant?) people do not get entrapped. I would really like someone to come up with software that when you try to click on copyrighted image a price tag would pop up with a link to the artist's Paypal account and you can either pay the price or leave the image alone. Thanks again to anyone who took an interest in my little saga. The End.

Posted

I agree with my colleagues. Given the dollar amount demanded, your best bet is to follow Attorney Koslyn's advice.

I am not your attorney and any posts/messages or responses to posts/messages can not establish an attorney-client relationship. www.PatchogueAttorney.com You should not rely upon free legal advice and I disclaim any liability for the results if you do.

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Posted

Many different items can be found "on the street." In this instance it is kind of like you missed the invisible price tag on somebody's bicycle. Just because it wasn't chained down, doesn't make it yours to take.

ATTORNEY ADVERTISING. You are not my client. I am not your attorney. The above comments are not confidential, not "legal advice", and not "legal opinion". I am licensed as a patent attorney and in the State of Connecticut. Retain and consult an appropriately licensed attorney to identify the laws and facts material to your concerns.

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Asker

Posted

I do understand, but how do sites like Pinterest and Tumblr get away with it? Apparently giving credit is not enough to prevent fees being charged based on what I have learned here. This company ImageRights International is going to make a fortune from clueless people like me.

Bruce E. Burdick

Bruce E. Burdick

Posted

That is what IRI hopes to do and is doing until word get out and something is done to make compulsory licenses available like on music.

Posted

The simple answer is that you cannot expect to get something for free. Since the Berne Convention went into effect in the late 80s, there is no longer an obligation to provide a copyright notice. Copyright protection attaches as soon as a work is created. I agree that the $500 is getting off easy. When I get calls from people who have received demand letters, it is usually several times that.

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Posted

If you copied or distributed the photo without permission, then you may have little legal ground to stand on.
Owners are not obligated to use a copyright notice for works published on or after March 1, 1989. In other words, use of the copyright notice is optional. Even when an owner chooses not to display the copyright notice, that owner still retains all the copyrights to the work. Failure to display the notice will allow you to claim the defense of innocent infringement, which can result in a reduction of damages. So you can get off more easily, but you can't avoid liability all together based on that defense alone.
I've dealt with copyright infringement defense, and $500 is generally a very generous offer. I would make sure that whoever is asking for the money in fact represents the owner and that you obtain an adequate release.

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