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How to Avoid the Website Copyright Trap

How to Avoid the Website Copyright Trap

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In the digital age, websites have become an essential marketing tool for the vast majority of start ups.

A business website provides you with a vehicle for selling goods and services – yet so does Facebook Store, Amazon Marketplace, Etsy and other sites set up as third party retailers. Many businesses therefore question whether they really need their own website when these sites provide an affordable way to sell online.

The truth is your website is more than just a way to sell; it’s a marketing tool that contributes to promoting brand awareness and developing brand image.

Many start up businesses with restricted budgets often create their own websites – in many cases, one of the founders or a team member have experience in coding or web design. If you are equipped with these skills, it’s possible to create a web presence on a budget – however it’s important to remember that your site will require a number of elements to ensure its success. To ensure your business appears “legit” on the web, you will need to consider features such as quality content such as infographics, photos and even videos – all of which can be expensive to acquire.

In 2016, just having a website in itself isn’t enough.

So how do you go about acquiring all these different components that are integral to the success of your site – without breaking the bank?

Well, there are a number of ways. However when it comes to acquiring content, businesses need to be across copyright laws – otherwise the end result could be a lawsuit!

“Borrowing” graphics

The web is full of images; in fact, for better or worse it’s possible to find images of just about anything.

I have come across many businesses that decide to “borrow” graphics for their website until they can afford to buy their own photos and infographics. It’s as though some people view the web as a “free for all” – many fail to understand the severity of borrowing an image.

A common, tempting and easy legal mistake to make, borrowing images for a website can have very real consequences for your business that extend far beyond simply having to remove the image from the website.

Most people are familiar with the “copyright infringement is not a victimless crime” spiel that precedes movies; this can essentially be applied to borrowing images on the internet.

Most businesses that borrow images are well aware that they are violating copyright laws to some extent; they know it’s not right. However, most fail to realize the potential repercussions. In the long run, a few borrowed images can have the potential to cause your business serious harm.

Start up founders generally operate under two incorrect assumptions:

1. Firstly, most founders underestimate the actual outcome of using someone else’s images. They assume that when posting a borrowed image, the worst outcome will be a takedown notice that asks for the image to be removed from their site.

Slightly inconvenient if you are yet to acquire a replacement image, but no real harm – many see it as a case of “what’s the worst that can happen”.

Unfortunately, the “worst thing that can happen” is far more severe than most people expect. Rather than a simple takedown notice, a settlement demand that involves real money is often on the cards.

Far more than just a strongly worded letter and a slap on the wrist!

2. Founders also assume that by borrowing graphics, they haven’t actually done any real harm to the owner of the image.

While there may be no obvious “damages”, copyright violations come with statutory damages – even in the absence of actual harm. In monetary terms, borrowing an image means that you could owe the owner anywhere between $750 and $30,000 per image. So if you have borrowed five images, the bill could equate to $150,000. That’s a lot of money for a few temporarily borrowed images.

If you consider the number of videos, photos and infographics that are used on a website these days the risk becomes apparent – if you “borrow” all of this content to complete your site, your could end up with a rather large bill!

Case Study - Don't Mess With George

My friend George owns a stock photo company among other things. His images are available on the internet for businesses to download in exchange for a license fee.

It’s not uncommon for businesses to copy his images from his website or other websites that have legally acquired and paid for them. In order to combat this form of stealing, George embeds a detectable signature into each and every one of his images – he then employs web crawlers to search for businesses that are using unauthorized copies of his images.

When a business is found to be using an unauthorized image, George sends them a demand letter to settle the claim for $5,000. He also requests that they purchase a license for the image.

In most cases, George is greeted by a response along the lines of “Sorry, we will take the image down”. However, that was not his request; George asked for $5,000 plus the purchase of the required license.

Of course, George doesn’t settle for just the removal of the image.

His course of action proceeds like this:

  1. Demand letter for $5,000 in statutory damages plus licensing fee (as mentioned).
  2. When this demand isn’t met and a “takedown” is offered instead, George requests a settlement of $10,000 plus licensing fee.
  3. This often results in the infringer offering to pay the initial amount. Rather than accept, George sends a settlement demand of $15,000 plus licensing fee. At this point, most businesses concede and pay the $15,000.
  4. For those that continue to debate, George pursues them in court for the full $30,000 in damages per violation. If multiple images are “borrowed”, this figure can increase substantially.

George has found that he actually makes more money off businesses that have used unauthorized copies of his images than via images that are legally sold.

Certainly an interesting “business model”.

Borrowing concepts

This is where it gets a little more complicated. Many people find it easy to understand the legal issues surrounding a “borrowed” image: simply don’t use people’s copyrighted images without paying for them.

However, many businesses assume that if they modify an image and then use it, it’s okay. Unfortunately this isn’t the case; borrowing concepts from other companies results in the same set of issues outlined in the aforementioned case study.

A derivative work that is based on or derived from an original copyrighted piece falls under an actual category of copyright infringement!

The concept of derivative works is intended to protect a business or individual from someone undermining their work.

For example, image that Jim wrote a successful novel. A few years later, Frank creates a new novel that utilizes Jim’s characters. The new book is creative and has its own copyright, however Frank is essentially riding on the coattails of Jim’s success. The public may have a misplaced understanding that Jim actually wrote the new book; without Jim, Frank’s success may have never eventuated.

Another example can be explained via Disney’s iconic character, Micky Mouse. Now imagine if another business created a Micky Mouse lookalike to promote their products – this would detract from Disney’s original character and potentially harm their image.

The important point to understand here? Just like flat out borrowing an image, borrowing an image’s concept can land you in hot water.

The temporary borrowing of graphics

So what about borrowing an image for a few months until you can afford to commission your own?

Many businesses weigh up the costs associated with both commissioning an image and “borrowing” an image.  This of course means weighing up the chance of the borrowed image being detected in the space of a few months.

What many businesses fail to realize is that removing an image from your website isn’t enough to protect you from landing in hot water further down the track.

I know what you are going to say: Once the image is taken off your website, how can an angry image owner know that you’ve used it retrospectively?

There are a number of ways – with the most common tactic being websites such as Wayback Machine. These websites allow you to view old versions of sites; think of it as a historical archive for websites. This means that even though an image may have only been on your site for six months, it can potentially be detected for far longer – in fact, up to the three years’ statute of limitation!

Don’t risk it

Yes, George is ahead of the pack in terms of tracking down “borrowers”; he owns a stock photo company and his method of embedding signatures and using web crawlers is more sophisticated than the average photographer.

However, this technology is becoming easier and more affordable to utilize. Ultimately, anyone can copy an image into Google’s Image Search function and see exactly where it appears on the internet.

As searching for images becomes easier, an increasing number of companies will begin employing George’s tactics – there’s too much money on offer for them to turn a blind eye! If you are borrowing images, the chance of being caught out is forever increasing – in fact, I believe that it’s only a matter of time before the search engine giants introduce a service that allows businesses to locate their images.

The point here? It’s time to start paying those licensing fees. It will cost a little more to set your website up initially – but these costs will still be far less than a lawsuit!