Best Practices to Follow When Using Stock Photos on Your Website.
Many of our clients have been receiving notices from copyright owners alleging that they have infringed copyrights to stock photos or images.
We believe this to be a new “shakedown” tactic, in which rights-holders to stock photos and images track down uses of their protected images through watermarking, and contact users of the images. These letters demand that the users prove they have a license to use the image, or, in the alternative, pay a large sum of money to settle the matter and avoid litigation. Demands run from the sublime – $200 for an image in a blog to the ridiculous – $8,000 for a photo of a piece of cauliflower!
Some examples of the unauthorized uses that rights-holders have alleged are that:
- The image was used without a license, or
- The image used may have been subject to a license, but the user did not comply with the specific terms of the license (i.e. proper attribution to the owner or source of the image was not included alongside the image).
If the party alleging infringement (that you have used an image they own, without their express authorization) has a copyright registration for the image, the law is on their side, and it will be your obligation to prove that you have the right to use the image in the manner you are using it.
It doesn’t matter if the image is registered along with hundreds of others as part of the same copyright registration. Nor does it matter if the party named in the copyright registration was neither the creator of the photo or image, nor the owner of the rights to the photo or image at the time you first used it. It matters only that the rights-holder is identified as the copyright owner in a current copyright registration. The state of the law is on the side of the registered copyright owner.
It also doesn’t matter how long ago you first posted the image. The statute of limitations for copyright infringement is three years. The Supreme Court has recently ruled that even if an infringement began many years earlier, a rights holder can still sue for and recover for damages from uses in the most recent three years preceding the litigation. Thus, if you posted an image on your blog ten years ago without a license, and the owner of the image has just discovered your unauthorized use, they can still sue you for damages that have accrued in the last three years.
To help you better understand how to avoid receiving a stock photo infringement “shakedown” notice, we recommend that you follow the strategies set forth in the following checklist:
- Only use images to which you own the rights, or have a license. It is a common practice to include imagery on landing pages, blog posts, store sites, social media posts, and elsewhere, to increase engagement. When placing an image on any of your platforms, always ensure that you have properly secured the rights to that image. You may own the rights in an image if: (i) you have created the image; (ii) an employee working on your behalf created the image as a work-made-for-hire; or (iii) you acquired ownership of the image by purchase and/or assignment. It is almost always okay to use an image you have created or a photo you have taken. An exception might be where you have created the image as a work-made-for-hire for another party; or if you have assigned the rights to that image to a third party. If you don’t own an image that you are using, you may still be authorized to use it if you have a license to do so. Any reputable stock photo site will provide a license to an image that you acquire via their service.
- If you are using an image subject to a license, make sure to retain a copy of the license. The license may be found in one of a few different places. It could appear in the Terms and Conditions of the stock photo website you are using. Alternatively, it could appear in a pop-up after you have “purchased” the image from a stock photo site, or the stock photo site may send it to you in an email in connection with your order of the stock photo or image. It is imperative that you hold on to copies of licenses for all of your photos and images. Your ability to provide proof of a license could help you overcome a “shakedown” attempt of the nature we’ve described here, and avoid having to pay large sums of money to the owner of the photo or image. Make sure that you are in compliance with all of the terms of the license. Stock photo and image licenses may be lengthy documents. Always review all of the terms of the license and only use the licensed photo or image subject to the terms of the license. For instance, if the license requires you to post some sort of attribution to the owner of the image alongside the image, always make sure to include that attribution. If the license only permits you to use the image a certain number of times, do not exceed that number. If the license provides a time restriction on your use of the image, make sure to take down that image (or seek an extension) before your time is up.
- If you don’t know the state of your rights to an image that you are currently using, take it down. Many of our clients have operated their blogs and websites for more than ten years. It is possible that you have not retained licenses to all of the photos and images that appear across your platforms. In fact, it is possible that you never had a proper license to some of the photos and images appearing across your platforms. While removal of these undocumented photos and images won’t help you overcome claims for past infringement, it can stop new claims from accruing. Thus, it is in your interest to remove any photos and images from your various platforms if you are uncertain about your right to use them.
- If you receive a letter related to a past use of a stock photo or image, contact us immediately so that we can attempt to resolve the matter with the attorneys for the rights-holder. If you are able to provide proof of a license to the stock photo or image identified in a letter from a rights-holder or their attorney, we may be able to demand that they retract their letter. If you are unable to provide proof of a license, we may still be able to negotiate a settlement amount which is far less than the copyright owner is demanding.
Big thanks and kudos to Rachel Leeds Edelman for researching our files and the law, and putting this important update together.