October 14, 2017,

How Small Business Owners Can Avoid Copyright Infringement

It seems that almost weekly I am reading about yet another business owner or entrepreneur that has downloaded a photo or image from the internet for use on their website or in their print advertising and then is surprised to be sent a cease and desist letter from the copyright owner requesting payment of tens of thousands of dollars in damages. Small business owners must be cautious when selecting photographs and other images from the
internet or print media to display on their websites or in their print advertising to avoid copyright infringement. The display or copying of an image or photograph without the permission of the copyright owner can result in copyright infringement.

Copyright protects literary, dramatic, musical and artistic works including writings, artwork, photographs, poetry, songs and movies. The author or owner of copyright has certain exclusive rights: 1) the right to reproduce the work in copies, 2) the right to prepare derivative works based upon the work, 3) the right to distribute copies of the work to the public by sale or
other transfer of ownership, lease, lending or rental, 4) the right to perform the work publicly, 5) the right to display the copyrighted work publicly, 6) in the case of sound recordings, the right to perform the work publicly or by means of a digital audio transmission. Anyone who violates any of the exclusive rights of the copyright owner is an infringer of the owner’s
copyright.

There are a few reasons why it is so easy to commit copyright infringement. First, copyright protection attaches or begins once the original work (photograph, writing, drawing, image, etc) is fixed or created. The moment I am done typing this article it will be protected by copyright. The moment you post your photograph to Facebook, Flickr or Instagram it is protected by copyright. Copyright registration with the federal government is a prerequisite to filing a lawsuit in federal court for copyright infringement. However, copyright registration is not required for copyright protection to exist. Second, copyrighted images or works do not have to display the federal copyright symbol ©. As a result, just because you see an image that
does not have the name of an author or the copyright symbol visible does not mean that it is not protected by copyright. Third, copyright infringement is a strict liability statute. In other words, your intent does not matter. Even if you did not intend to commit copyright infringement or you did not know that the photo or image you are using was protected by
copyright; that is no defense to a claim of copyright infringement. Fourth, there are literally hundreds of thousands of copyrighted works available on the internet that can be easily downloaded and copied with just a few keystrokes.

To avoid any allegations of copyright infringement, assume that any image, video or photograph you encounter online, unless you took the photograph or created the video or image yourself, is protected by copyright. There are images available online that can be licensed for use (for a fee) through the copyright owner or that are no longer protected by copyright (also called “public domain” images). Public domain images can be used freely by
anyone for any purpose without the fear of committing copyright infringement. To find these images, search for “public domain images” in your internet search engine.

Statutory damages for copyright infringement can range from $750 to $30,000 for non-willful infringement and up to $150,000 for willful infringement. However, statutory damages are only available if the copyright owner registered their copyright: 1) within three months of
publication of the work; or 2) at any time before the infringement occurs. A proper measure of damages for copyright infringement can also be the amount of the license or the fee that the copyright owner would have charged the infringer to use their copyrighted work. If you have
been accused of copyright infringement or if you have received a cease and desist letter demanding payment of damages for copyright infringement, you should contact an intellectual property attorney to discuss your rights and the possible defenses available to you.

To protect your business, your money and your reputation, be proactive in avoiding copyright infringement. Don’t copy, download or distribute any photographs or other images you have obtained from the internet that you did not pay to use or that you did not create yourself. Further, instruct your employees to do the same. If you have any questions about whether any images, writings or photographs that you are using on your website or in your print advertising may expose you to claims for copyright infringement, contact an attorney experienced in intellectual property law for advice.