A copyright problem costs money

I got a call from one of my customers yesterday - my lawyer. When he gets called on anything to do with the Internet and needs some advice, he calls me.

In this case it was regarding a question of copyright, a subject that you may already know I've spent quite a bit of time on with my work on the Canadian Blank Media Levy and other things.

In this case he had a call from someone (we'll call them Customer) who had been billed for use of some photos on a web site; billed quite a substantial amount of money by an agency in the US (the Agent) that purported to be the agent for the copyright holder of the photos. The billed party wanted to know where they stood and was this legitimate, or should they refuse to pay and possibly risk being sued - and would they (the billed party) win, or would the bill stand?

It turned out that his potential client had been owed some money by a third party (the Webmaster), and the Webmaster had offered to do up a website for them in payment of the debt. They were apparently fairly pleased with the site until the Agent's bill arrived in the mail for something in excess of twice what they had been owed by the Webmaster. The Webmaster had simply lifted the images from another site and used them without permission - and now has dissapeared.

In this day and age it is easy finding images and copying them; no need to visit an agency or photographer, just browse the net or use Google or other search engine - view the file and right-click on it to copy it to your machine for your own use. The problem is that because it is so easy, and the "internet is free" many people don't even think about the fact that re-purposing an image (or video, sound, etc.) is probably a direct copyright violation no matter what the jurisdiction. Most countries have either signed on to a world convention or have cross-jurisdiction agreements in place that make the violations stick.

Another of my customers (WorldOfStock.com) is in the stock photo business. If one of their images showed up on a site that had not paid for it, I'm sure they would do a similar thing to what the Agent has done - send a bill for the use of the rights. The hardest part of their business is protecting the full-resolution images from the sites that simply want to take a copy of everything.

So anybody/business that wants a web site built had best make sure that the images that are employed on the site are ones for which payment has been made or waived; either photos commissioned specifically for the site, purchased from a stock photo agent, or provided from the owners' own library. Use of anything "found" on the web has the potential to backfire in a costly way at any time in the future.

Note also that persons depicted in photos must give a "model release" for their image to be used in commercial presentation - and a web site advertising a business is a commercial presentation. This need for a model release is one of the things that an Agency takes care of - keeping such releases on file so that if there is ever a question the release is available. The Agents also ensure that if there are restrictions on the use of images - for example a model may stipulate that their image may not be used to advertise a particular type of product - then that is known up front to any potential licensor. The Customer in this case could have been in for a particularly nasty surprise if the Webmaster had used images with a person that didn't want to be associated with their product - possibly due to an exclusive given to a competitor - that could have resulted in even higher costs and probably a lawsuit off the bat.

To be sure, there are sources of royalty-free images and graphics. I purchased a library of such works from Corel many years ago and still dip into them from time to time. You'll see some of them in use as the icons on some of the topics here on my blog for instance. There are also repositories of out-of-copyright images and other materials on the web from such sites as Springfield Township High School Virtual Library and Gimp Savvy's photo archive. You can find others by searching for "copyright free images" on your favourite search engine - but note that even here you are likely prohibited from using images of people in some cases.

But back to my lawyer and his question; what to tell his Customer?

My answer was simple - tell them to research the Agent and ensure that they were in fact the agent for the copyright holder, and if so, pay the bill and be thankful it wasn't more. Then go after the Webmaster in small claims court for at least the amount they were owed that was contra'd so if the Webmaster ever showed up again they could at least get that back. Then councel them to make sure that their site was done "by the book" - they had actually removed the images but if they paid the bill it was likely they could put them back if they truly liked the site - but make sure that any other images were used with permission or replaced.

I suggested the research of the Agent simply because, although I have not heard myself of scams like this, almost anything goes these days and you can't be too careful.

I'll note here that "I am not a lawyer" - I just consult for one :)