Some years ago, digital marketing firm The Content Factory got an unpleasant surprise in the mail.
A lawyer summoned them to pay $8,000 in penalties for alleged copyright infringement. Why?
Well, one of their professional bloggers wrote a story about bargain hunting in Omaha, and used a photo of Nebraska. It wasn’t a great picture, and the article didn’t get much exposure, but that was beside the point.
The Content Factory did not obtain permission from the rights holder to use the image, and that was the problem. A very expensive problem!
What would you do if you were in their shoes? Take the photo down and apologize, hoping that would be the end of it? That sounds reasonable, right?
Forget that.
ENTER THE TROLLS
The enforcement of copyright is a billion dollar business. Companies like Masterfile and CEG TEK litigate against corporations, individuals, and small businesses who have intentionally or unintentionally used images without having obtained a license.
These companies (and individual lawyers) are commonly known as “copyright trolls.” They have sophisticated computer programs that search the web 24/7 to find copyrighted works that are used without authorization. They’re not only going after pictures. They’re also targeting illegal downloads of any kind, such as video games, music, porn, and movies.
Once they’ve secured the names and contact information of the people accused of infringement, the trolls will send out “litigation settlement” demand letters. These letters threaten defendants with costly lawsuits.
Of course the suit can go away, but only if you pay promptly. The longer you wait, the higher the amount you will be sued for. And if proven guilty, you’ll pay attorney fees too.
Now, is this blatant extortion of vulnerable people who simply made an honest mistake, or are these trolls in business to protect the rights holders?
I think it’s a bit of both.
According to copyright.gov:
“copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.”
Let’s say you’re a professional photographer, and your portfolio is on the web. You own the rights to these pictures, and you make a living selling them. Now, somewhere in a different state, a web designer is doing a Google image search for a website he’s building. He stumbles across one of your pictures, he takes a screenshot, and decides to use it.
In that moment you as the owner, lose value, because you could have sold the use of that image to the web designer. Under the law, you can claim monetary damages for financial losses, and for additional profits the infringer earned from using your photo.
That seems fair, doesn’t it? But copyright issues aren’t always cut and dried.
FAIR USE
Under certain circumstances people are allowed the unlicensed use of copyright-protected works. It’s because of a legal doctrine called “Fair Use.” For instance, making braille copies or audio recordings of books for the blind is considered “fair use.” Recording a TV show on your DVR, is also considered “fair use,” as long as it’s for private viewing.
The U.S. Copyright Act of 1976 allows the reproduction of authored works for the purpose of “criticism, comment, news reporting, teaching …, scholarship, or research.” There is a four-part Fair Use test based on the following factors:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for, or value of, the copyrighted work
For instance, using short quotations or excerpts from published books authored by others, is “fair use.” Courts do evaluate fair use claims on a case-by-case basis.
PUBLIC DOMAIN
But what about if something is in the “public domain”? The public domain refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. These works may be used freely, and without permission.
There are four common ways that works arrive in the public domain:
- the copyright has expired
- the copyright owner failed to follow copyright renewal rules
- the copyright owner deliberately placed it in the public domain, known as “dedication,” or
- copyright law does not protect this type of work.
CREATIVE COMMONS
Creative Commons (CC), is an American nonprofit organization designed to foster the public domain, and it helps copyright owners dedicate their works to the public domain.
It provides free legal tools that give everyone from individual “user generated content” creators to major companies and institutions a standardized way to pre-clear usage rights to creative work they own the copyright to. CC licenses allow people to change their copyright terms from the default of “all rights reserved” to “some rights reserved.”
If you’re an artist, student, educator, scientist, or other creator looking for content that you can freely and legally use, there is a giant pool of CC-licensed creativity available. There are many millions of works – from songs and videos to scientific and academic content – that you can use under the terms of the CC copyright licenses.
WHAT THIS MEANS FOR YOU
First and foremost: it is your obligation to make sure that you have permission from the rights owner to use his or her images on your website, on your blog, and for your social media posts. This includes all the logos of companies you ever did voice-overs for!
Trademark owners might actually sue you for “dilution” of a trademark,” because your use might (in their opinion) lessen the uniqueness of the logo, and tarnish the brand’s reputation.
If your demos have music, make sure it is properly licensed. Copyright your own sound files if necessary, to secure payment, and to protect usage. And by the way, as long as your client has not paid you for your audio, you own it!
Attorney, actor, producer, and voice artist Robert Sciglimpaglia advises VO’s to trademark their brand, company name, website, slogans, and tag lines.
YOUR HOMEWORK
So, here’s what you should do.
Go over all the images on your website, your blog, and the ones you use on social media, and immediately delete the ones you have been using without permission. If in doubt: take them out!
Replace them with pictures from a subscription site like Shutterstock, from Creative Commons, Wikimedia Commons, or with pictures you took yourself.
Check the music and videos on your site, and get permission from the owners to use them.
Go to copyright.gov, and read up on copyright law. Learn about the difference between a trademark and a service mark, and click here to find out what you need to know to register a trademark. When you’re ready to register, hire an attorney like Rob to guide you through the process.
BEING SUED
Should you ever get sued over copyright infringement, know that the goal of most trolls is to obtain a settlement. They don’t want to bring their lawsuit to trial because they would have to prove the allegations. The only reason they even mention court, is to scare the living daylights out of you, hoping you will settle.
The website fightcopyrightrolls.com (a great resource in the public domain) warns:
“In order to increase settlement rate, trolls resort to lies. They conceal important information from the Court. They make unrealistic and unnecessary threats to defendants. They grossly overstate the damages to copyright holders caused by infringement.”
Get legal representation, and go over your options.
NEBRASKA
So what happened with the case of The Content Factory that had to pay thousands of dollars for the unauthorized use of one lousy photo? They hired a lawyer who negotiated a settlement. Instead of having to pay $8,000, they ended up paying $3,000 in penalties.
The Content Factory concludes:
“Had we been a smaller company and didn’t think to negotiate a settlement, we could’ve been put out of business. To be honest, had this happened within the first few months of starting the company, we would’ve probably closed up shop and run back to living one-third of our lives in cubicles, where it’s safe and there’s always health insurance.”
Don’t assume this won’t happen to you.
One of our colleagues is being sued as we speak over a lousy photo he put in his blog, and had forgotten about.
You have been warned!
Paul Strikwerda ©nethervoice
PS Many thanks to Rob Sciglimpaglia for bringing matters of copyright and infringement to my attention, and for allowing me to use some of the information from his talk at VO Atlanta 2017. Rob is the author of Voice Over Legal, a must-have book for every voice actor. Click here to order a copy.
PPS For more information on blogging and copyright, read the article Blogger’s Guide to Copyright and DMCA.
Image credit: EFF (Own work) [CC BY 3.0 us (creativecommons.org/licenses/by/3.0/us/deed.en)], via Wikimedia Commons
Paul, thank you for sharing this invaluable information.
Bev
I know Rob’s presentation at VO Atlanta potentially saved me thousands of dollars, and it’s only fair to pass that information on to my community.
…thank you, Paul. More people need to know about this more recent type of internet Troll.
A sidebar to your excellent story: a couple of years ago I got one of those notices via Getty Images about a photo I used on my ‘blog which I thought had come from a free-sharing site. I double-checked it and sure enough, it was owned by Getty. Of course I removed it at once, and they acknowledged that, but still wanted their 8,000 bucks.
I remembered a friend in another business who had mentioned this trouble with Getty over a picture used by their web designer which supposedly had come from a third party licensed library. After some consultation, she did have the photo removed, but ignored the collection letters and calls for one year and that the Troll dropped the matter. She said I should do the same. Not having the 8,000 and having little assets worth suing over, I took a chance…and her advice. After a year – nothing. Pursuit abandoned.
Mind you, by then I had long since gone back over three years of ‘blog entries and deleted ANY photo or image I wasn’t sure about, and would recommend your caution to anyone in future. Empty threat or not, it simply isn’t worth the hassle and ulcer-fodder. rg
Thanks for sharing your experience, Rowell. These trolls are really into intimidation, and don’t seem to want to spend money on taking you to court. However, that doesn’t mean they will not pursue that option.
An even scarier scenario has popped up recently: companies buying non-copyrighted images, copyrighting those images, and going after the people who thought they were using free photos! This has nothing to do with securing the rights of the owners. This is a money makings scheme of the worst kind!
Ignoring a copyright infringement demand letter may be good advice for an individual who lives in his/her parents’ basement, but if you have assets or the letter was sent to your company, attorneys will come after you and will file a lawsuit. I am a photographer who first attempts to handle all copyright infringements on my own. I typically send my own demand letter asking for $495, which includes a license to continue using the photo (keep in mind, I only pursue commercial uses). I had one company that ignored my letter and a second follow-up letter. I turned it over to my attorney, and a month later the company settled for $25,000. I had a tour company using my photo in a tour ad. The owner responded back that he could get a similar photo on a stock photo agency for $1, so he’d give me 10 times that, $10. A few months later after I turned the case over to my attorney, he settled for $19,000. He wasn’t as smart as he thought. So, yes, this is serious business if you have assets. The attorney’s have investigators, so they know who has money and who does not.
Thanks for giving us a clear example of what happens when you steal someone else’s work. There is a price to be paid!
It’s not just images BUT ALSO FONTS that you have on your website. Make sure that any specialized fonts are approved (purchased) for commercial use.
Good tip, Dan. Thanks for sharing!
This topic sure grabbed our attention. Thanks to you and Rob for sharing your wisdom and guidance. You’re a..doll. (not a typo)
If only this story would get as much attention as the ones I wrote about a certain Pay-to-Play… As with many things in life, it’s better to be safe than sorry.
Thanks Paul. I’ve been paying rights for use of images & other IP for years, but will carefully comb through everything JUST to ensure the ship’s as tight as I think it is.
Valuable heads up!
These copyright trolls are really getting aggressive, so a tight ship is a must. Safe sailing!
Paul, thank you so very much for sharing this information. I’m trying to blog more and I’ve researched how visuals help a lot. But I truly wasn’t aware of the potential dangers. I’ll be sure to either create my own or go to Shutterstock. Again, thank you so much for sharing this news.
My pleasure, Mary. If you have any legal questions, buy Rob’s book, and/or shoot him an email.
Is it copyright infringement if you take copy from a commercial and put it on a demo?
Thanks in advance.
Nancy
If you have written and explicit permission from the copyrights holder to use it, you may.
Thanks so much, Paul.
Hi,
Just a comment about what you wrote about your recording being your own until the client has payed.
I tell my clients they pay for the the right to use it, not to own it.
No complaints so far, neither here in Sweden, nor abroad.
Fingers crossed you’ll never run into any problems, Nils. Unfortunately, some clients are less than ethical. They’ll pay for a video they say is for internal use only, but weeks later it’s on YouTube for the whole world to see.
Of course that happens. But are you not always the owner of your recordings?
It depends on the terms and conditions of the contract. Once the talent agrees to a full buyout, and s/he has been paid, it’s game over.
google “Indianapolis skyline photo Richard Bell”. He is, very conveniently, a retired copyright lawyer suing hundreds of people for a photo he took 15+ years ago. He knows the system and appears to be spending his twilight years padding his fortune as a digital extortionist. It is sick.
That’s right. We have ambulance chasers, and now these scoundrels.
This was a good topic, especially because it hits home — but not the way you might think.
I’m now working on building my VO career (very slowly and carefully), but for a couple of decades, I was a commercial photographer.
One day around 5 years ago, I was stunned to see one of my images on TV as it was being rolled out as the main design on new police cars in Detroit. After clearing that situation up, I got curious as to where else my *copyrighted* image was being used… and after doing a search, I found 58 PAGES of Google results, most of which were commercial uses of my photo. Some were people selling it outright on Amazon, eBay and other sites; some were large (VERY) corporations using it without permission; others were bloggers and individuals, of which I don’t really care about.
You can’t ask me to turn my head while my work is used for commercial purposes. You should ask ANY copyright holder to do that. Now, are there ‘trolls’? I’m sure there are. But when a massive internet company (of which every one of us have heard of and probably used) is using my photo as the main image on their welcome page – which is intended to draw people in and spend money with them – then I’m going to insist that part of the money they made using their site and my image should go to the copyright holder.
As for ‘immediately deleting the image’, as someone before had mentioned, think of it this way: a guy walks in to a 7-11 and upon entering the store grabs a soda and drinks it. Then, minutes later, the guy leaves the store. The manager says ‘hey, you owe me for that soda’ — the guy can’t just leave the empty can and walk out. If you use someone’s image, then you owe for the usage.
A good rule of thumb: if you’re using an image from the web, and you don’t own a specific right to use it that was worked out with the copyright holder, and the image didn’t come out of your own camera, DON’T USE IT. There are lots of stock images that you can get for a low cost. No image you see online is free unless the actual owner says so.
It’s not a fun subject, but please try to think of things both ways — content creators deserve to be compensated for every use.