Are Copyright Trolls Hunting Your Website?

Images are an invaluable way to convey an idea to your audience, but using an image online on your website, blog, or social media account can be tricky. You must use caution and diligence to avoid the landmines that are waiting out there.

Tip 1: Personal Picture Protection

Images bring your website to life. If you are worried about using images you find online (and you should be), then the safest route is to use images you create yourself. If you have the budget for it, you should consider hiring a professional photographer for high-quality pictures. A professional will have the tools and the skill to take high-quality photographs. If you are operating on a tighter budget, consider offering a trade of your services in exchange for the photo session, or turn to a local photography school to see about booking a student photographer at a reasonable rate.

If you have no budget, you can still get high-quality pictures for your website by taking the pictures yourself with proper guidance. If you plan to use your smartphone as a camera, research the tools at your disposal and how to take the best pictures. Here are some ideas to consider:

• Use natural (and bright) light.
• Invest in a tripod.
• Make sure the subject of your photo is in focus.
• Keep the overall composition of your photo in mind.
• Make sure you have the proper resolution (check with your web designer if you have questions about the size of your imagery).
• Check out some handy editing tools such as Canva or Afterlight.

Tip 2: Purchase Protection

You can turn to stock images if you do not need the picture to have a personal touch. Stock images are high-quality photos available for purchase (sometimes free) that you can use on your website. Make sure you do your research when purchasing stock images. You need to confirm what the license you are purchasing allows; some are limited to blog use, social media use, editorial use, or commercial use. Verify if there is a time limit to your use, and stay in compliance. Maintain a file of all the licenses for all the images you use on any material.

Side note: Pixabay.com is a great website that provides thousands of professional images. Images are free for commercial use with no attribution required.

Tip 3: Copyright Trolls under the Bridge

Copyright trolls are cropping up everywhere. There are law firms across the country specializing in this shady practice area. A copyright troll either owns a copyright or acquires blanket authorization from a copyright holder to enforce a copyright. When it comes to images, these trolls use a search engine such as Google’s reverse image search to identify users who may be infringing on their or their client’s copyrights. They then launch into a series of harassing communications by letter or email, alleging a copyright infringement has occurred and that you owe them or their client X amount in damages (usually in the range of hundreds to thousands of dollars), and that failure to settle this claim out of court could leave you subject to up to $150,000 in damages.

The trolls are deliberately vague, preying on uninformed recipients to meet their demands out of fear of the exorbitant damages. The easiest way to dismiss their claim is to provide evidence of your license or authorization from the copyright holder. If you do not have that information readily available, prepare for a long exchange.

Tip 4: Some Courts Are Tightening the Noose on Fair Use

Many people caught up in the net of a copyright troll alleging a costly copyright infringement will turn to fair use as a defense. Fair use is a legal doctrine that encourages freedom of expression by permitting the unlicensed use of copyright-protected works in select circumstances. Section 107 of the Copyright Act reads:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

However, copyright holders have fought for years to scale back this doctrine and further protect their rights. As a result, there is a sizeable gray area in which fair use may or may not apply. Some of the areas that have tightened the most center around the amount and substantiality of the portion of work used (see Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998)) and how transformative the use was (see The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 19-2420 (2d Cir. 2021)). While the protection is still there, you should tread carefully when relying on this doctrine.

Tip 5: Beware of Sharing Memes or Images on Your Firm’s Social Media Page

Social media makes sharing content with current and potential clients easy. Sharing other people’s photos is something most people do on social media regularly. Keep in mind that all social media platforms have different rules in place when it comes to using shared content and go to great lengths to protect themselves and their users. These measures still do not guarantee a right to take photos and content shared on social media and distribute it from your account without license. In Agence France Presse v. Morel, No. 1:2010cv02730, the jury found that “Agence France Presse (‘AFP’) and Getty Images (US), Inc. (‘Getty,’ and together with AFP, ‘Defendants’) had willfully infringed Daniel Morel’s copyright in eight photographs taken in the aftermath of the January 2010 Haiti earthquake.” In this case, Morel, a professional photographer in Haiti, took several photographs on January 12, 2010, following a devastating earthquake in Haiti. Morel then uploaded the photos to his Twitter feed. After that, “[a] Twitter user named Lisandra Suero copied the photographs into his own Twitter feed without Morel’s consent, and though the parties dispute precisely what happened next, eight of the photographs—initially credited to Suero—ended up being distributed by AFP and its ‘image partner’ Getty to thousands of news outlets and other customers around the world.” AFP and Getty both alleged they were licensed to use Morel’s images by virtue of Twitter’s Terms of Service; however, the court quickly rejected this argument. Twitter’s current Terms of Service, available here, provide that users grant Twitter “a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).” AFP and Getty were referring to this language in their defense. However, in the same paragraph, it reads, “You retain your rights to any Content you submit, post or display on or through the Services.” This is what the courts used to assert that Morel did not give license to anyone to use the images he shared.

Moral of the story: When sharing images you find on social media, make sure you trace the image back to its source and verify the licensing requirements first.

A picture is worth a thousand words, but make sure you take careful measures so it does not cost you a lot more.