Your Website: Tips to Stay Out of Legal Trouble – Part 1 (Copyright)
A good website for your business can be an invaluable marketing tool. However, if you’re not careful, you could get into trouble for using images, photos, videos and other content in violation of copyright law.
Rights Granted under Copyright
Under the U.S. Copyright Act, the owner of a creative work is granted certain rights, including the right to prevent others from reproducing or copying their work, publicly displaying their work, or distributing their work.
Posting copyrighted material, say, a photograph, on your website arguably violates all these rights! Moreover, your Internet service provider (ISP) can also be found liable for copyright infringement, even if they played no part in designing or maintaining your website.
All small business owners must therefore be extremely careful about what goes on their website!
Even big companies with sophisticated marketing campaigns get into trouble. In May 2017, world-renowned luxury brand Tiffany & Co. was sued by photojournalist Peter Gould for using his photograph in an ad campaign for a line of jewelry designed by Elsa Peretti. The photo at issue was a shot of Ms. Peretti back in the day. The case was quickly settled and dismissed in July 2017, presumably because Tiffany’s agreed to write a nice fat check to Gould.
Tiffany certainly had the deep pockets to quickly deal with the lawsuit and settle, but your small business may not have these kinds of resources.
As a general rule, we tell our clients to assume any content they may want to use for their website, brochure, promotional video or other project is protected by either copyright or trademark law unless they can confirm otherwise. A work is not in the public domain simply because you found it up on the Internet already (a common misconception) or because it lacks a copyright notice (another misconception). Just because you are a local small business with not a lot of revenue and not a great understanding of copyright law does not mean you can claim “fair use” for the content either. There are no safe harbors in the Copyright Act if you just made a mistake or misunderstood.
Finally, be aware: If you do see an image or video is affixed with a copyright notice (or “copyright management information“) and choose to remove the info and use it anyway, this makes you liable for additional statutory damages under copyright laws.
Statutory damages range from a few hundred dollars to $25,000 per violation, meaning a mistaken infringement on your website can cost you a lot.
Investigate Infringement Claims Promptly
If someone complains about an unauthorized use on your website, remove the offending material at once and begin to investigate the claim immediately. If necessary, consult with an attorney on how to handle the investigation and how to respond to the claimant appropriately.
You may find after your research that your use is perfectly legal. However, you should remove the material while you investigate in order to limit your possible damages should the claimant file a lawsuit. Continuing to use the infringing material after receiving notice will increase the chances of you being found liable and increase the amount of damages you may have to pay.
Removal of infringing material is also an element of the Digital Millennium Copyright Act (DMCA), a 1998 law establishing that an ISP can avoid liability by following certain rules, including speedy removal of infringing material. Thus, if you don’t stay on top of copyright infringement complaints about your website, your ISP may get dragged into your mess as well.