Promoting and Advocating for the Broadcasters of Nevada, While Serving the Public

Nevada Broadcasters Association

We’ve written many times about the perils of posting a photo on your website without getting permission from the photo’s owner (see, for instance, our articles here and here).  Copyright protects photos, even when they are shared on the Internet.  Just by posting a photo to some website does not mean that the owner has given up its copyright protections – and just because you can easily right-click on the image and paste it on your website doesn’t mean it is legal to do so. If you copy a photo for use on your site without permission, you should not be surprised to see a copyright infringement claim seeking damages – potentially big damages.  To avoid issues, many website owners look for ways to get permission to use photos, signing up for subscriptions from stock photo services or, often when trying to save money, relying on photos made available through some “creative commons” license.  However, relying on the creative commons license can be perilous.  One example is a recent US District Court ruling on a motion for summary judgment of a copyright lawsuit brought by a photographer when his photos of Willie Nelson and Carlos Santana appeared on a news website to illustrate articles on the musicians.  Anyone with a website should read this decision, as it addresses in detail not only the issues with these creative commons licenses, but also many of the other legal issues that arise in lawsuits about the unauthorized use of photos.

In this case, a local news website had used photos that were freely available on a creative commons site and were widely circulated on other sites.  But when they were posted to the defendant’s site, there was allegedly no attribution of the photos to the photographer and no link to the photographer’s own site, which were preconditions to the creative commons license.  Because the defendant did not follow the terms of license, the court found that the license was not effective.  The fact that these photos were otherwise widely available on the Internet similarly provided no defense to the infringement claim.  Relying on a creative commons license without scrupulous attention to any license requirements can lead to legal actions like the one brought here. In fact, the decision suggested that this was not the first lawsuit brought by this photographer, and as we’ve seen in past cases, there is no shortage of other photographers ready to make claims against those who use their work without an effective license.

The case is also of interest because the court did not give any weight to the defendant’s argument that the revenue generated by use of the photos was miniscule.  According to the decision, the article using the Nelson photo generated about $10 in advertising revenue.  The one using the Santana photo only realized about $3.  The photographer indicated that even when he sold a photo, the sales price was at most a few thousand dollars – likely far less than the costs for the attorney’s fees to brief all the issues discussed in this decision.  Why would a case continue to be fought in these circumstances?  While there is always the possibility of some personal score being settled, more than likely it is the potential for statutory damages that fuels suits like this one – damages that can be as much as $150,000 per infringed work, even without any proof of any actual damages.

Will damages be that high in this case?  Perhaps not, as the court’s opinion notes that the site’s owner claimed that he respected copyrights and did not realize that the pictures were protected or that they were posted without obtaining all necessary permissions.  Statutory damages can be as little as $200 if the infringer can prove that they were not aware, and had no reason to believe, that their acts infringed on someone’s copyright.  But even if the damages are found to be low, the defendant still has to pay his attorney’s fees and face potentially higher insurance premiums in the future – so any violation is not without pain.

The court also noted that there was no notice of violation or a request that the infringing material be taken down sent by the copyright holder.  The first notice that the news site owner had of the violation was when he received the lawsuit.  It is a common misperception that there is no liability if a site takes down infringing content when notified of an infringement. As shown by this decision, notice is not required – the copyright owner can sue without any prior warning to the unauthorized user.

The case also goes through an analysis of whether the uses on the website were “fair use” of the photos.  We will not go through all the analysis of the factors to be considered in a fair use analysis – but if you are interested, you can look at our articles here and here for more details about that defense to a copyright claim.  As the defendant’s uses were direct appropriations of the photos and not for purposes of commentary or criticism of the photos themselves, it was not deemed a fair use.  The use in the defendant’s articles deprived the copyright holder of revenues from the sale of the works (or at least the publicity for his own website that would have resulted from the link that was required by the creative commons license – a link to a display of the plaintiff’s other photographic works he had for sale).  There was no other “transformative use” (a use that changed the nature of the copyrighted material and used it in a way that would not compete with the original use). Direct copies of the photos were used with nothing being changed but a little cropping of the Santana photo.  Thus, under the fair use factors, there was no reason to conclude that a fair use defense was applicable to the uses here.

The court looked at other issues in its comprehensive decision, including an argument that the copyright holder waited too long to sue (rejected, as the suit was brought within the 3-year statute of limitations) and arguments that any harm was “de minimis” and did not justify a lawsuit.  So the case moves forward to trial if the parties do not settle.  While this is a small case in a US District Court in Florida – and not in a court known for dealing with big media issues – it is a very instructive decision that should be reviewed for its careful analysis of many of the issues that come up in these photo cases – issues that media companies should be thinking about before they post any content on their website that they did not create themselves.

Courtesy Broadcast Law Blog