So, you were surfing the web and found the coolest image you’ve ever seen. You decide it’s perfect for your web site and you either pop it on yourself or hand it to a web designer and ask him or her to put it on your site. Then you decide you want to go rob a bank because they have all kinds of cool money there.
What does one have to do with the other, you ask? “Robbing a bank is against the law!” Well, so is using a copyrighted image without permission or payment. You won’t go to the “big house” for breaking the copyright law but you will face huge fines that could cripple your business. Think I’m wrong or believe you will never get caught? The same ability to search Google for images and finding one you want to use for your site has the same power to have the owner of the image find you. There is no hiding and the belief that you can’t be touched will give you nightmares once you are found.
The Basic Copyright Law
Ignorance of the law is no excuse. Don’t know you are suppose to stop at a red light? Tough! Thought you could just help yourself to an image off the internet? Tough! If you think the copyright law means nothing, better read up on it first.
Copyright infringement can include a violation of the rights of the creator or rights holder. Examples of imagery infringement may include:
Use beyond the scope of a license or permission.
Adapting an image without permission.
Asking another photographer or illustrator to identically recreate the image.
The legal penalties for copyright infringement are:
Infringer pays the actual dollar amount of damages and profits.
The law provides a range from $200 to $150,000 for each work infringed.
Infringer pays for all attorney’s fees and court costs.
The Court can issue an injunction to stop the infringing acts.
The Court can impound the illegal works.
The infringer can go to jail.
A friend of mine wrote and told me his company was stealing copyrighted work. He was very upset and said that his manager believes that anything on the internet is available to be put on a “crappy T-shirt.”
He asked my advice on what to do. He was a creative who felt righteous indignation about stealing from other creatives. I had to think about what to say in response.
The first time I was ordered to steal copyrighted material by my boss, I was horrified and felt I should protect the rights of others. It wasn’t so much for monetary gain but for a presentation and involved the work of several dozen illustrators. Nonetheless, it was something for which they should have received payment.
I pushed the point in a meeting on the project, pontificating on the copyright law in front of several executives and the president of the company. Later on, my supervisor informed me that the multi-sleazebag legal department had approved of the plan, claiming that if the copyright owners found out, it “wouldn’t cost more than a hundred dollars or so.”
Once again, I pointed out that the actual figure would be much more and the embarrassment to the corporation would be devastating. I was told not to worry about it and use the material. I did but made a copy of the presentation for my records, just in case. In a worst-case scenario, I didn’t want to be the art director who stole from other creatives. I knew of at least one other art director who took the fall for the company when the same thing happened. The project was discovered and the art director was fired, while every other art director and designer in the company sat mum, afraid to speak up and say that she had been handed the material and told to use it.
“Just do it and forget about it…it’s not your neck on the line. When the company is sued for thousands of dollars, you’ll be long gone,” I wrote to my friend. I hit send and felt I had given him the best advice available. Later I realized that he would take the blame when the company got caught. I regretted not telling him to nail the company doors shut with everyone inside and burn the place to the ground or poison the employee coffee pot because the penalty would be less then the damage to his professional reputation when he became the scapegoat for his company and their blatant disregard for the law.
What I neglected to tell him was that even if he wasn’t the scapegoat of blame, just knowing that the infringement occurred, he was guilty by association. He was part of the process.
Yes, it’s the law. Using copyrighted material without permission for any commercial usage, which includes presentations, T-shirts, promotional material, in-house posters, etc. is a breach of the copyright law. It does, however, happen every day in every part of the world. If Hello Kitty were a real person, she would die and spin in her grave from all of the illegal usage of her cute and profitable visage. Me-ouch!
So what can happen to someone involved, even at the lowest levels of infringement? If an infringement is discovered, responsible parties may include:
- The party that infringed (the photographer or the person that stole the image in the first place), even if unintentionally.
- Employees or others who participated in the original infringement.
- Anyone who published the infringing image, whether they had knowledge or not.
- Anyone who authorized or encouraged infringement.
My aforementioned friend continued his tale of woe about his employer, relating that his employer was raided by homeland security and Major League Baseball for his stock and records of copyright infringed materials. The owner of the company refuses to pay the fine levied by Major League Baseball through a court order and has now gone back into printing sports team shirts with infringed logos. Here’s how his boss believes he can get around the law:
“He believes that if he prints a T-shirt with a major league sports team logo and donates it to his church or sells it through his church, it’s not illegal. He insists that anything he donates in the name of God is not to make a profit.”
The company owner, when warned about the copyright law by employees, stated, “you can not copyright an image of a bird, or an illustration of a bird. My brother-in-law told me so.”
I now realize I gave him the wrong advice. “Let it go,” I wrote. “It’s not your neck on the line. Just take an ‘I-don’t-care-attitude’ and life will be easier. Survival is number one in this economy and having a job … any job is important.”
His neck was right there in the noose with his employer. If the owner of the company wanted to throw my friend under the bus, he could say he had no idea that the image was copyrighted or he could just tell the authorities that everyone was equally involved. So what was he to do?
Quiting his job in this economic climate is impossible. He could quit and file suit as he had no choice but it would take years to get to court and longer to get paid, minus legal fees… not to mention just trying to collect from a man who believed he was protected “by God.”
A week later, I wrote him some updated advice. “Make getting a new job your number one priority, after working the hours you need to put into that place and something better will come your way. Then just live with the fading nightmares for a while and laugh at the experience.”
I tried to impart some way he could have a modicum of legal protection. “There is nothing you can say that will convince (your boss) otherwise. Just save all files and when you leave, turn him in to the assorted copyright holders so his life ends in poverty and misery and he can think God hates him.”
Unfortunately, the law is the law and in a worst-case scenario, my friend would have to hope for a sympathetic judge. It’s not a gamble I would like to take.
How many times have creatives, been handed images by a client or boss and been told to use them in an assignment or project? The minute you use an image you know to be illegal, you are an accessory to a copyright theft. Financial penalties can be devastating and if the client or your boss decides to throw you under the bus, then you will really be stuck. It’s not only monetary damages, which may include punitive damages but you may also be ordered to pay the plaintiff’s legal costs, aside from your own. I’ve seen it happen and the innocent designer’s career and life was ruined while the people who ordered them to use the illegal images never gave it a second thought. It’s a hard fact of life and the creative industry.
When the Law Catches Up With You
Since my friend’s employer is somewhat typical of people who believe they have the right or won’t get caught infringing copyrighted material, let’s take a look at the likely consequences he will eventually face. Unless God is his legal representation, he WILL eventually face some life changing realities.
The employer already has a court order he’s ignoring. That’s even worse then being caught infringing copyrighted work. He has been caught, pronounced guilty and has had his punishment spelled out in an official court document. To ignore it is contemptuous in the eyes of the court and when, not if but when an order of contempt is filed by the petitioner (the copyright holder), my friend’s boss will be looking at jail time and huge financial hits that won’t just close his business but may also reach into his personal holdings, depending on his incorporation. His belief in fair use through religious foundations is not valid.
There are valid uses of copyrighted material, including certain educational uses, derivative works and other fair use exceptions. None of these applies to commercial uses such as my friend’s employer’s business uses.
In many cases, you can find and legally use an image (not an existing logo or corporate registered trademark) or one that is close to what you want, just by searching out the image from one of the many stock image houses out there.
Stock Images Make Sense
When using stock images, you need to be aware of the rights you are purchasing for your particular use. Kelly Jay, The owner/partner of GL Stock Images, imparts the difference in rights sold by stock sources:
Rights Managed Images
When you purchase a rights-managed image, you are essentially “renting” the image for a one-time use in your project. The image price is determined on several factors: placement, size, quantity, demographics/traffic, industry type, distribution, duration and resolution. Depending on your project scope, the pricing can be dramatic. For example, an image purchased for the cover of Time Magazine may cost thousands of dollars whereas the same image purchased for a small website or blog may cost under a hundred dollars.
Royalty Free Images
A less expensive alternative is to purchase royalty free images. Royalty free means you do not have to pay royalties only a one-time fee to use the image. This means you can use the image for multiple aspects of your project, such as print and web. Pricing is based on image size/resolution: small, medium or large. The smaller the size means the smaller the price.
For more information on the use and legalities of stock images, see more at stockphotorights.com.
Images ©GL Stock Images