Beware of Copyright Trolls

Have you ever copied a photograph from a website thinking that the photograph was free to use?  You may have thought this because the photograph did not contain a watermark or copyright notice. Maybe the photograph claimed that it was “royalty free,” and you assumed that meant it was free to use for no charge.  Or, perhaps you were aware that using the photograph was not authorized, but you figured it would never be discovered. These are common mistakes that can prove to be costly.

As a general rule, you should assume that any photograph you find on the internet is protected by copyright law. U.S. copyright protection is automatic upon fixation into a tangible medium of expression. Copyrighted works are not required to use a copyright notice or any other marking. Furthermore, wrongful intent is not necessary to commit copyright infringement. With limited exceptions, the use of any work without the express permission of the owner constitutes copyright infringement.

You should not assume that copyright infringement will not be discovered. With the use of technology, copyright owners can easily find unauthorized uses of their work. For example, some photographs contain embedded tracking bots to alert the owner of where the photograph is being used without permission. Other software applications use algorithms to scan the Internet for unauthorized use. Even a simple Google search can find websites where an unauthorized photograph has appeared.  We are aware of a case where a photographer found an image that was used a decade ago and asserted a claim for copyright infringement.

If you would like to use a photograph on your website, you should find the copyright owner of the photograph and receive written permission before using it. Often, this will require a fee. Make sure to keep a copy of the written permission in case your use is ever questioned. Recently, we handled a case where the website owner received permission to use the photograph, but he did not keep permission in his files to prove his authorization. If you currently have photographs on your website which you did not receive written permission to use, or you did not keep the written permission in your files, you should immediately remove those photographs from your website.

We regularly represent clients in handling copyright infringement claims and advise clients about securing intellectual property rights. Please contact us if you need our assistance in resolving a claim made against you, finding a copyright owner, or entering a license agreement for use of a photograph.

This article is provided for general information and should not be relied upon as legal advice for a specific situation.  If you are in need of specific advice or legal representation, please do not hesitate to contact us.

©2019 Bea & VandenBerk