Attorney Paul Lesko writes about the copyright issues that surround using images from the Internet in blog posts.
It happens a lot. I’m out with friends, and someone mentions I’m an intellectual property litigator. Someone then invariably says they are rampantly violating someone else’s copyright.
It’s not said that way; it’s more innocuous…something like, “For my website, I use images that I find on others’ websites.”
I hear this, cringe, then suggest they should not do that.
The normal response: “The images were on the web…so they’re free.”
Ugh, no. In fact, you’re probably violating someone’s copyright. Unless the works are from a depository of public domain images, it’s best to consider everything on the Internet as copyrighted.
“But they didn’t have a copyright notice.”
There is no requirement to give a copyright notice; it’s still infringement.
“I did not know I was violating copyright law, so I’m innocent.”
Wrong again. Ignorance is not a defense.
“They’ll never prove I did it.”
Not so. Proving copyright infringement for Internet images is easy. Basically, all a copyright owner’s attorney needs to do is walk to the jury box and hold up two pieces of paper: one, showing the copyrighted image, the other, the image from your website. Since both images are likely identical, you’re in trouble.
“I have a ‘fair use’ defense.”
This makes me grind my teeth and want to ask, “Do you even know what the ‘fair use’ defense is?” But I don’t. I just explain that the fair use defense is complicated, involves multiple factors, and is inconsistently applied by courts. So, relying on a “fair use” defense as a get out of jail card is a bad idea.
“Well, if I did commit infringement, it can’t be worth that much because I didn’t make money from the image.”
Yikes. The Copyright Statue allows for two types of damages: 1) actual damages (e.g., lost sales) or 2) statutory damages of “not less than $750 or more than $30,000.” And those damages can be multiplied if you’re found to be a willful infringer. Sure, you may have made “no money,” from that image, but it could still cost you a lot of money.
“The Internet is a big place…I’ll never get caught.”
Not really; you’re just a search engine away from being found. There are companies that create the ability for others to search the web for images. It’s just like Google, except instead of typing words, you just paste the picture. So, actually, it’s surprisingly easy to find infringers.
And it’s never a good defense to say, “I never thought you’d find me!”
By this point, I’ve depressed the person I’ve been talking to, and normally have been anointed “Captain Buzzkill.” But, I mean well, so, I give the person the best advice I can give: treat all Internet images like they are copyrighted. If you want to use one, if it’s not expressly in the public domain, you need to pay for it. If you don’t want to pay for it, start from scratch and make one of your own.
And when you realize you can’t make an image you like, you’ll realize that’s why you should pay for it.
About IP Attorney Paul Lesko
Paul Lesko is a shareholder at Simmons Browder Gianaris Angelides & Barnerd LLC and the chair of its Intellectual Property Department. Don’t hold the fact that Paul is a lawyer against him. He’s also writer and an avid baseball card collector. He has published articles in top industry publications including The Columbia Science & Technology Law Review and is a blogger on intellectual property topics for the online magazine Cardboard Connection.
Paul has also provided expert legal analysis in national leading publications including The New York Times, PC World, American Legal Magazine and Chicago Lawyers Magazine. He has also spoken about copyright issues during the Missouri Writers’ Guild Annual Conference, and at MWG chapter meetings of the St. Louis Writers’ Guild and Saturday Writers. Paul can be found on Twitter @Paul_Lesko.