When a small business client called me one day to ask how to respond to a demand for $5,000.00 for the unauthorized use of a stock image, I took a deep breath and prepared myself for the inevitable conversation that would follow.
I knew I would start by asking a few basic questions: “Where did you find the image?” “Did you receive any permission at all?” “Was it a commercial use?” I also knew the business owner would respond by telling me they found the image online, on a “free” site, and that they didn’t see what they did wrong. These conversations with small business owners are very predictable. Too predictable, in fact. And the conversations almost always end in a way that requires a payout of money that could have been used for building the business, not undermining it.
Over the years, I’ve found that when it comes to the topic of copyright, small businesses have it pretty rough. There is a mountain of information available online, but much of it is created by people who have no idea what they are talking about. The information coming from non-professionals tends to be incomplete, inaccurate, biased, and downright dangerous. It doesn’t help the situation that there is a considerable amount of accurate information coming from credible sources – lawyers, consultants, the U.S. Copyright Office, and others - but much of that information is overwhelming and confusing.
How can a small business stay out of trouble with copyrights? There are actually a few simple tactics that will drastically reduce the potential for being on the receiving end of a “cease and desist” letter or paying thousands of dollars to settle a lawsuit.
Treat Audio, Video, Text, and Images Found Online as Protected by Copyright
Finding a creative work online, even on a site specifically designed to share content (e.g., Facebook, YouTube, Twitter, etc.), does not mean it is not protected by copyright. The question of whether an image, video, song, or article, for example, is protected by copyright has nothing to do with where you find it and everything to do with whether the material is subject to copyright protection in the first place. The law defines what is protected by copyright, and the law looks to the material itself, not where it is found.
If you treat all of the podcasts, songs, images, videos, articles, blog posts, and everything else you find online, as protected by copyright, you will automatically improve your chances of handling it correctly.
Acknowledge That You Don’t Know Copyright Law
I wrote the White Paper, “Can You Copyright A Tweet,” as a direct response to the pervasive misinformation spreading like wildfire across the Internet about whether a Tweet is subject to copyright protection. It quickly became one of the most cited authorities on the topic, including by the World Intellectual Property Organization and countless other universities, designers, and “experts” in the field, primarily because I accurately and simply demystified a highly complicated subject. But how can a small business owner ever know what copyrights may or may not be copied, posted, re-posted, or otherwise used without legal complications?
The simple answer is that unless you know copyright law, you don’t know copyright law. When you acknowledge that you don’t know copyright law, it forces you to either educate yourself or seek professional advice. Both of those options reduce your risk of handling copyrights the wrong way.
Read the Fine Print
Most small businesses rely on their web developers or stock image/video sites for creative material for things like web pages, ads, and promotional materials. Have you ever actually read the terms and conditions that apply to your use of these materials? Most small businesses are looking for the big ticket items: (1) license cost, (2) commercial v. editorial; and (3) digital v. physical. It should not surprise you to discover that nearly all licenses explicitly state whether an image, for example, may be used on more than one page of a website, or whether a video must be imbedded from a specific source.
The fine print of a license is your ticket to safety. It explains exactly what you may or may not do with an image, audio file, video file, article or other creative materials you find online. If you fail to read the fine print, you are inviting a problem.
Privacy Rights Are Different Than Copyrights
Did you know that many stock image sites do not take responsibility if you are sued for using an image you licensed or purchased from them if the image includes people? Sounds crazy, right? When you take a picture of a person, you create a copyright (the image), but the person featured in the image also has rights which are commonly referred to as privacy rights. If you don’t receive permission from the person featured in the image, you might be sued even if you do properly license the copyright in the image. Privacy rights are not the same as the copyright.
Get Help When You Need It
Improper use of copyrights by your small business can put you at risk of losing hundreds of thousands of dollars. Even a minor settlement may set you back a few thousand dollars. And, since most small businesses use copyrights every single day, proper copyright use is an important component to a successful business. In my own firm, for example, I help small businesses learn how to properly interact with copyrights and mitigate risk in the process. If you want to keep your small business out of copyright trouble, get the help you need before you lose leverage and pay more than you should.