Q: What’s lamer than a crappy photo of Nebraska? A: Having to pay $8,000 in copyright infringement penalties for it. This is a lesson we recently learned the hard way, and if you have (or contribute to) a blog you might want to read about our story so that you never, ever make the same mistake we did.
Long Story Short: Image Copyright Laws Can Screw You Over
We write thousands of blog posts every year for our clients and agency partners. Our editorial standards are obnoxiously high, and we do our best to write the best web content our clients (and their competitors) have ever seen. Although we try to catch everything, occasionally a mistake sneaks by us. Recently we made a very costly mistake, and I think it's one that every blogger and business owner should be aware of.
It all started when one of our writers published a blog post to a client’s site – it was about finding great deals in Omaha, Nebraska (complete with an altogether underwhelming photo of the city, which may or may not have been taken by a drunken college student with a camera phone in 2005). You wouldn't see this photo and immediately go book a vacation there, is what I'm saying.
I'm also saying that I have a hard time believing the photographer commands thousands of dollars per image – most of his work had nothing at all to do with photography, and he wasn't an artist with any kind of recognition or awards to his name. Anyway, the website was new and it wasn’t an especially popular post – we could prove via Google Analytics that fewer than 100 people read it. It wasn't our proudest moment, but we've learned a lot from the experience.
^This image of Omaha is only slightly worse than the one we got sued for. Not that we're bitter or anything.^
The Problem: Copyright Infringement Penalties Are Ridiculous
More than three months after the post went live, the client got an email from an attorney. This particular lawyer deals with one thing and one thing only: image copyright infringement. For the sake of the story, let's say his name is Curtis M. Leech, Esq.
The long-forgotten blog post that was published months ago had come back to haunt us. Mr. Leech sent the client a formal complaint letter, saying that they were being sued for $8,000 for using his client's copyrighted photo on their website.
We were under the mistaken impression that before anyone could be sued, the offender had to ignore a request to take down the copyrighted image. Because the lawsuit came without any kind of warning and this was the first time we'd ever been accused of such a thing, we were hoping that replacing the image and sincerely apologizing to Mr. Leech and his client would remedy the situation. We were wrong. Welcome to the world of “Fair Use."
Current Fair Use image copyright laws say that you’re financially liable for posting copyrighted images, even if:
- You did it by accident
- You immediately take down the picture after receiving a DMCA takedown notice
- The picture is resized
- If the picture is licensed to your web developer (Getty Images requires that you get your own license, thankyouverymuch)
- You link back to the photo source and cite the photographer’s name
- Your site isn’t commercial and you make no money from your blog
- You have a disclaimer on the site
- The pic is embedded instead of saved on your server
- You found it on the Internet (that’s not an excuse!)
If you use copyrighted images, you will get caught sooner or later. People who create copyrighted works hire companies that use computer programs to scour web pages for copies of those images. It takes time to find them, but the process is automated and runs 24 hours a day, 7 days a week. If you post something that's copyrighted on a blog page that has links pointing to it and the author wants to monitor that particular image, an unauthorized use of it WILL be found eventually.
All of our clients sign contracts stating that they’re solely responsible for all of the content we produce, but we were ethically opposed to making somebody else pay for a mistake that happened on our watch. We called our lawyer, and the negotiations with Mr. Leech, Esq. began.
It’ll Be Okay…Eventually, After You Hire a Lawyer
Fortunately, we were able to hire a lawyer who was able to negotiate a settlement – we ended up paying $3,000 instead of the original $8,000 in copyright infringement penalties Mr. Leech was originally seeking. Leech drove a hard bargain, but he did offer a three-month installment plan if we needed the extra time (so know that could be an option, if you ever find yourself dealing with your own Leech).
Somehow we resisted the urge to run through fields of clover, spontaneously jumping to click our heels with glee while celebrating our good fortune. $3,000 is a lot less than $8,000, but still far from appropriate restitution for our offence. And it was also the equivalent of several months' rent at the office, or holiday bonuses for our staff, or a variety of other ways we could've spent the money to grow our business or expand our payroll. This was our most costly mistake since starting the business, and in the end I was almost happy to pay Mr. Leech – just so I'd never have to think of him, or the money, or the things that I could've done with the money, ever again.
I've since chalked it up as a lesson learned, albeit the hard way. Hopefully, after reading this post, you won't make the same mistake we did.
The Fault: It’s Ours, For Not Fully Understanding Copyright Infringement Laws
Ultimately, as owners of The Content Factory the fault lies entirely with Joanie and me. Here’s where we went wrong:
- We weren’t familiar with copyright infringement laws. In the legal world, there’s no such thing as common sense – so ours did us no favors. The laws are set up to enrich lawyers, probably because they were written by lawyers. We knew the basics (don't use copyrighted images, don't find images via Google Image search, etc.), but we should have done more research about image copyright laws and copyright infringement penalties, and we should have made everyone on our team aware of the potential damage that can be done if we post the wrong image to a blog.
- We should’ve noticed that the photo wasn’t up to par. It just wasn’t a good shot, and there are many others that would’ve been better suited for the post. Our editors were too focused on the copy, and images were sort of secondary. This is no longer the case.
- We missed seeing that it was a copyrighted image. All of our writers have budgets for paid photos.. This was posted by a newly hired writer, and the one time he used a copyrighted image he got caught. None of his other posts had this particular issue, and it was an editorial oversight on our part.
Let me be clear: I believe that photographers should be paid for their work and I think that people who steal images deserve to pay some sort of restitution for any damages caused. In fact, we pay for images every single day and we should've paid for this one as well. I fully admit that we were in the wrong – but were we $8,000 worth of wrong? That works out to almost $100 per page view, and comes nowhere close to any actual damages we may have inflicted on the photographer with our use of the image. The photographer wasn't famous, the photo wasn't important (there was no grassy knoll or celebrity "gotcha" moment) and the photographer's other works sold for nowhere near that amount. That's not to say the image didn't (and doesn't still!) have value, but nobody in their right mind would put that value at $8,000.
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. It’s only because we hired a lawyer that we were able to get the copyright infringment penalties reduced via a settlement deal. Not everyone can afford that kind of expense, especially new businesses that may not be profitable yet. Make no mistake about it, this practice can be a business killer (which means it can also be a job killer).
The Larger Problem: Copyright Infringement Laws Breed Predatory Legal Practices
^ Image copywrong: Kari DePhillips. Others are free to steal or "borrow" this graphic, not that anyone should want to. ^
In our opinion, image copyright laws have created and enabled an industry of predatory lawyers. These attorneys take advantage of photographers and artists who make their images available online, as well as the bloggers who don’t know any better and post the wrong content to their sites. The lawyers make money on a contingency basis, usually taking at least 40% of the copyright infringement penalties they “earn” by hunting down unsuspecting bloggers. This is akin to digital ambulance chasing, only with less work required and a slightly smaller stigma attached to it. Leechy lawyers are costing small businesses and bloggers a metric crapload of money every year. It's impossible to tell how much, because most disputes are settled out of court and aren't recorded in any sort of official document that's available. If this data exists, I couldn't find it.
The amount that these lawyers sue for seems to be completely arbitrary. In our case, $8,000 was not a reasonable amount to sue for given the nonexistent damages caused, especially given the lack of views the post received. To be able to negotiate down to $3,000 was absurd, assuming the value was ever really $8k. The value is whatever the lawyer determines it to be, and considering he gets 40% of the imaginary value that he makes up on a whim, that number is invariably going to be ridiculously large. In fact, Goodreads was just sued for $150,000 for a photo of an obscure boy band that a user uploaded to their site. $150k for one photo is unreasonable, unless it’s the first photo of a celebrity baby.
What’s to stop us from taking hundreds of photos of everyday things, uploading them to Google Images and optimizing them for favorable search phrases, and then waiting for bloggers to use them so we can sue for thousands – or hundreds of thousands – in copyright infringement penalties? The answer is absolutely nothing, and I’m willing to bet that a surprising number of people make their livings doing just that. The “attorney” and “artist” who sued us certainly do, as do countless other “copyright trolls."
Every single person who works for The Content Factory is a writer. We don’t want to infringe on anyone’s copyright any more than we want others to infringe on ours – and we’ve had to send DCMA takedown notices of our own before. By this logic, we’ve passed up countless opportunities to sue people. We’re okay with that.
We’re not okay with bloggers and business owners being sued into bankruptcy for making a mistake that really didn’t hurt anyone at all. Nobody’s stealing the Mona Lisa and trying to pass it off as their own creation, nor are we talking about celebrity paparazzi shots that could potentially sell for hundreds of thousands to tabloid magazines (in fact, Mavrix Photo, the celeb photog agency I used to blog for, has sued Guyism.com for $3.15 million for snaps of Katy Perry in a bikini). This is a slightly different situation, as Mavrix Photo probably lost a lot of money when those exclusive pictures were published on Guyism instead of the cover of a celebrity magazine. There was nothing special about the photo of Omaha that we got sued for, and it wasn’t even a recent picture.
If the photographer who took the photo of Omaha was negatively impacted when we posted the image to a client’s site, it couldn’t have been to the tune of more than $150. Round up for legal fees, and maybe $500 would’ve been reasonable. It would’ve been enough to teach us a lesson, as well as enough to compensate the photographer for an image that nobody in their right mind would purposefully pay money for.
It Can Happen to You, Too
I’d like to say that we’re just the unlucky victims of an isolated incident, but then I’d be lying. It can happen to you, too – and if you’re not careful with your blog images on a consistent basis, it probably will happen to you. From what we can tell, more and more bloggers are experiencing the same nightmare that we’ve been dealing with. Roni Loren at BlogHer recently wrote about her experience dancing with
the devil predatory lawyers, and Web Copy Plus spent $4,000 to settle a similar suit.
While discussing the situation with some of our agency clients, I learned that each and every one of them has been sued before – most of them were able to settle for less than half of the original amount demanded by the plaintiff’s lawyer. This problem isn’t going away, so the only thing you can do as a blog content producer is protect yourself.
You might not find a lot of stories about these ridiculous copyright infringement penalties online, because few people are willing to publicly admit that they “stole” a photo – by accident or otherwise. Few agencies are willing to go on record and say that they made a mistake while working on a client’s account, and few bloggers want to risk their reputations by publicizing such a rookie error.
In this instance, the photographer was the victim, and we more than paid for any damages we caused. But there's more than one victim in this story. We want to help spread the word about copyright infringement laws and their negative impact on small businesses and bloggers, because we want the fewest number of people to be victimized by these predatory legal practices. Until we can change the laws, or the way the laws are applied, we all have to be in Cover Your Ass mode.
How to Keep From Getting a Copyright Infringement Lawsuit of Your Own
I could spend 3,000 more words trying to reinvent the wheel by describing how to avoid infringing on copyrights, but I’m not a lawyer I’m in no position to be giving out legal advice (lest we get sued for that, too). I will say that if you take a look around our website, you may notice that it has an old-school Rosie the Riveter theme. That’s no coincidence – photos taken prior to a certain date are copyright-free.
Roni Loren did a great job explaining how to avoid the trap that she fell in, and WikiHow’s page on avoiding copyright infringement is also a good page that will help bring you up to speed on image copyright laws.
PLEASE share this post with the bloggers you know – the more money we can keep in small businesses and out of the hands of greedy lawyers, the better.
Do you have a story about getting sued for copyright infringment? What were your copyright infringement penalties? Were you able to negotiate a settlement for less money? Share your story in the comments section. It'll be therapeutic to commiserate with others
By: Kari DePhillips