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Many people share the misconception that digital images that do
not bear a copyright notice or protective watermark are in the
public domain and free for copying.
This can become a costly mistake for those people who make use
of these images (for example, by copying them and posting them on
another website, such as Pinterest). Companies that license digital
photographs use sophisticated tools to locate unlicensed copies of
their material on the Internet and often aggressively pursue those
who have used copyrightprotected content without permission.
Under the Copyright Act, the creator of an expressive work, such
as a drawing, photograph or piece of writing, automatically owns
copyright rights of the material as soon as it is set in fixed
form.
While it is good practice for copyright owners to place a
copyright notice on their works to alert others that it is
protected, the law does not require the creator to display a
copyright notice or take other protective measures in order to
enjoy copyright protection.
Ignorance is expensive
Suppose you have copied a photograph from a website. You receive
a letter from a copyright owner claiming that you have violated the
owner's copyright and demanding several thousand dollars in
exchange for a "retroactive license."
Immediately removing the image does not relieve you from
liability for damages arising from past infringing use. Then,
surely your use of the photograph was "fair use,"
especially since you did not intend to violate any copyrights?
Again, not necessarily.
While your intent in copying the material may affect the amount
of damages awarded in a copyright infringement action, it is not a
requirement for a finding of infringement. Moreover, although
"fair uses" of copyrighted works do exist, the analysis
involved in determining whether a use will be deemed
"fair" is often complex, and it is difficult to predict
the outcomes. In this situation, the steep "retroactive
license" fee might actually be the least expensive option to
dispose of a copyright infringement claim. To establish copyright
infringement, the copyright owner must only prove ownership of the
material and that you have copied it without permission.
If the copyright owners registered the copyright with the
Copyright Office before you copied the material, then they
don't even need to prove that your infringing use of the image
caused them to suffer any actual monetary damages.
Instead, once the copyright owner establishes infringement, the
Copyright Act entitles the holder to recover "statutory
damages" ranging from $350 to $30,000 (at the discretion of
the court) for each separate instance. Damages can exceed $150,000
per copyright if the owner can prove that the infringement was
willful, which people sometimes interpret as including actions
taken with knowledge or reckless disregard of the copyright
owner's rights, as opposed to an actual intent to infringe.
Ultimately, the best (and least costly) course of action is to
ensure in the beginning that you or your employees either create or
purchase — from the copyright owner or licensed from the
copyright owner — all images on your website or in print
materials.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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