The Gist Of This Episode: Planning on regramming someone’s photo or snagging a quote off a website and linking back? Think again! Committing copyright infringement is costly. Come learn how to NOT do it, and what to do if it happens to you.
Hey guys, Rachel Brenke with the Business Bites. On today’s episode, we need to talk a little bit about copyright infringement. So many of you are going online and you’re either regramming an image off of Instagram or you’re snagging a photo from these websites that supposedly have Creative Commons or free use and the proper licenses. I need all of you guys to slow down for like two seconds. Actually, 10 to 15 minutes, with this episode, and listen to some words of advice that will save you time, money and heartache.
Now in America, which is the law that majority of this podcast is based upon, we receive copyright ownership of our images when we take a photograph. If also, when we create a blog post or music, et cetera. Works of art. As long as we’re not under a contract that transfers the ownership or we haven’t transferred ownership later with a contract or we’re not in employment style relationship that would change it, the creator of the work is the copyright owner of the work by default, okay?
Now, what does this mean. This means the person that, even though they take a photo with their phone, that is still copyright ownership over the image. They upload it to their own Instagram and they hashtag it, it is still their image. There is no license that has been given to anybody else excluding the Instagram terms, which the Instagram terms are between Instagram and the person that uploaded a photo, does not extend to any third parties like you who are seeing it. So, anytime that one of you are going and regramming an image without express permission from the copyright owner of that photo, you’re committing copyright infringement. Same thing with blog post. If you go and snag someone’s content, even if you attribute it, even if you link back. Same thing with Instagram photos. Even if you use the Regram app, even if you credit the original photographer, it is still copyright infringement if you guys are putting these on social media platforms or blogs or websites that have a commercial purpose.
Now, keep in mind that I’m not talking about fair use during this episode. I’m not talking about any education exclusions. I’m talking about one person or one legal entity that has a commercial based platform. What does that mean? An Instagram profile, for example, that promotes your media consulting company or your photography business or it could be to sell a product or service. The end game is for you to sell something or make some money or say sponsored feed that you’re receiving compensation for, whether it’s money or products or services. Anytime that occurs, and you utilize the photo, the music, the video, anything of someone else without proper permission, you are committing copyright infringement.
What does this mean? This means that you can be sued in federal court for copyright infringement. The copyright holder has a couple of different options. By default, we have the copyright ownership, but that only allows for actual damages. Now, if someone takes the step and does copyright registration, they’ll then have the potential to receive statutory damages and potentially attorney’s fees. What does all that mean for you, the person that may take the individual’s photo and repost it on their Instagram whether you caption it and include the tag of their name or not? It means that you committed copyright infringement and you will either be sued or you’re going to need to pay. Or you’ll be sued and have to pay, because you have unauthorized use of that image.
I give you an example. This could one of 50 clients that we have at any time, because copyright infringement is so prevalent these days. You guys need to understand that you can’t just take someone’s photo. You can’t just log on to these free websites and assume that the licenses are accurate. If you’re caught using someone else’s photo, you are implicated for copyright infringement. You’re the one that’s doing it. Here’s an example. I recently had a client who posted their images on Instagram. The client that they photographed for, also posted the images on Instagram. That was all good, because a client had hired the photographer. There were photographer retain the copyrights of the images, the client had a license to reproduce or repost the images, which they did. Everything was gravy.
Well, then this company came in and decided to take those images and post it on their own social media Instagram feed, which is the end game was you send consumers to their website to buy their products. This company was contacted by the photographer and the photographer took the first steps, which I recommend you guys do if you find your images or any of your intellectual property has been infringed upon. Document everything, get it all taken care of and reach out to the company or the person. Ask them either to take it down and order to pay the licensing fee that they should have paid to use that image in the first place.
Now this company decided that they didn’t want to comply. They just wanted to ignore and delete, delete, delete, block, block, block the photographer. The photographer ended up coming to yours truly. In our law firm, we do a lot of intellectual property work, especially federal copyright. Copyright infringement is the number one thing that we’ve been working on lately, and they come to me to handle it for them. So, we took the steps and we sent a letter and we demanded that they pay X amount, which was the licensing fee. They refused to comply. So, we send another one with an increased amount, they refused to comply. We then drafted a lawsuit and attached it to the next letter and said, “If you don’t pay this invoice of the licensing amounts,” which also included, at this point, the amount to cover all of the attorney’s fees that the copyright owner was having to pay to enforce, that we’re going to file this lawsuit in federal court.
The other company then decided to comply and has now paid my clients 14 and a half times more than they would have paid had they listened to the photographer in the very beginning. Had they acquired an attorney that knew what they were talking about in the very beginning. I can’t share names, I can’t share figures, I can only give you guys what I have given you so far of the situation. But it doesn’t really matter how much I give you, because the most important things you guys need to take away from this, one, do not use images by other people or blog posts or audio or video or any other works without permission. Just because a photographer post an image on Instagram, does not mean that it’s fair game for you to use on your commercial Instagram feed. Just because someone puts a video on Facebook, doesn’t necessarily mean that it’s fair game for you to use.
Now we’re not gonna go down the whole discussion of the share function, that’s a little bit different. Arguably, we’ll do another podcast on that. But the taking and using of any other ones copyrighted works, whether you’re claiming it as your own or not, that’s not a requirement. Whether you attribute it to the proper owner or not doesn’t matter. The fact that you credit a photographer when you use their image in a commercial manner does not negate the copyright infringement. You’re still in trouble for it. You’re still on the hook, guys. You have to understand this.
The reason that I’m really hardcore passionate talking about this, is that there are so many out there who are finding a nice image, taking it, putting it on their Instagram feed because maybe they found it through a hashtag or they just found it through your feed. And then they’re crediting you, the person that took the photo, and acting like everything’s okay. In fact, there’s someone who did this to one of my own images. Which is just an iPhone image, but it’s still my intellectual property. It’s still ownership of yours truly. That individual needs to be paying a licensing fee, or I can sue them for federal copyright infringement.
We’re not going to dig into all the defenses in the circumstances. In every situation, the argument’s going to be different depending on the elements and everything that happened in the situation. Where they got the image from, whether it was credited, was it not, yada, yada, yada, yada. There’s a whole long rod range, which is why I recommend that if you guys ever end up in a situation where you’re receiving a DMCA takedown, which goes to your host, but you’ll be notified, or a cease and desist letter or an invoice, please get an attorney to teach you the proper legalities of copyright law. I know one who can work in all 50 states. You’re listening to her right now. I’m more than happy to sit down and teach you, which is also why I’m putting it on this episode right now.
But the reason I’m publishing this episode is that I don’t want you guys to, one, violate other people’s intellectual properties such as use of their images, their videos, artwork, logos, whatever. Two, I want you guys to be able to focus on your business. I don’t want you to have to be caught up in something because you merely didn’t know. Ignorance of the law is not a defense of your actions when it comes to this, okay? You can potentially still end up being liable for copyright infringement, and I don’t want you to do that. So, the end game of this, if you see an image on Instagram that you want to feature, reach out to the person and get their proper permission. Doesn’t necessarily have to be this huge long legal document or these fancy words, but make sure you have the proper language and permissions. “Hey, Jamie, blah, blah, blah, blah, blah, blah, yes or no. Respond back.” That’s probably enough to give you permission.
Blah, blah, blah, blah, obviously equals the legal language that you guys need to have permission for use. But it really is as simple as that. But taking it to the next level. It doesn’t even have to be this whole big crazy thing. In fact, if you want to use someone’s image, you’re obviously attracted to them and their work for a reason. You’re obviously attracted to their output. So, why not take this chance, instead of burning the bridge by unauthorized use of their intellectual property, why not reach out to them and see what you can connect with? See what you guys can do with each other. Because, you guys, business networking is gold, is gold.
If you’re not doing business networking and these business referral relationships, you’re going to get left behind. In fact, Episode 18, which you can find at rachelbrenke.com/epi18, talks extensively about this in that Business Bite episode. So, bottom line to this guy’s, if you are someone who’s intellectual property is being infringed upon, stand up for it. Make sure you recognize by listening to this podcast, recognize your rights, recognize the steps that you can take. You can send a takedown notice, you can contact their host and have it taken down, but make sure you document all the evidence of it. So, you’re ensuring that you have it all there, so if you end up having to get legal advice. Talk to an attorney, they can help you get paid, especially if that individual obviously is putting it on a commercial Instagram, Twitter, Facebook, blog, website.
When I say individual, it can be a company as well. But they’re putting it on there, they’re making money off that image, even if they’re not selling that image. So, just keep that in mind, that you guys need to stand up for this. You need to recognize that there may be a little cash outlay, but that’s why you have a budget savings. That’s why you guys need to make sure that you’re sending some away to defend the intellectual property that is the very basis of your brands, that are attracting your consumers to your products or services. If you don’t stand up for it, then what? Who’s going to? You may as well just throw money out the door without any actual end return. Whereas if you’re investing the money to stand up for your intellectual property, protect and preserve your brand, then you’re doing something for yourself, you’re doing something for your business.
Now, as an attorney, and you come to me and I review the situation, I may tell you that this is not necessarily a battle to fight. Sometimes, other times, I’ll be able to gauge and tell you your claim is strong. That’s why it’s really important you guys look into talking to an attorney. Also, if you want some additional information, head over to Episode 36, rachelbrenke.com/epi36 on DIY of copywriting your intellectual property. But just keep in mind, guys, if you’re on the flip side of it you’re wanting to us people’s images or video or whatever artwork it is, just because they hashtag your business name or they hashtag a certain name, that doesn’t necessarily mean that that’s permission for you to use that image on your commercial Instagram, Twitter, Facebook, whatever feed. Okay? Reach out to them, get their permissions, create a business relationship together and don’t commit copyright infringement.
It really is that easy. If you are scrambling and trying to figure out how you can fill your own Instagram feed, then commit your time, your budget and your energy into hiring someone to create those images and videos for you. Or learn the craft and do it yourself or purchase the proper licenses on sites out there. I highly recommend that you don’t just take images. I highly recommend, as an attorney, I’m going say it over and over again. I highly, highly, highly, highly recommend that you are not using images on these free sites, Creative Commons and all of those. Because you don’t actually know where those images are coming from.
You want to purchase a license from a reputable site. Support other fellow small business owners, other entrepreneurs, invest in them, invest in yourself, invest in your brand and most of all, invest in protecting the intellectual property of yourself, respecting the intellectual property of others because a rising tide lifts all boats. And, guys, we can do this together. I hate having to make part of my living off of having to defend people’s intellectual property. If we could all just respect one another and not have to go use other people’s intellectual property without permission, that would be amazing, absolutely amazing.
Thank you, guys, for joining me today on this episode. You can check it out at rachelbrenke.com. And please, I encourage you to dig into learning more about copyright, because it touches every single one of us. No matter what industry, business, or anything that you’re in, it impacts us all.
Rachel Brenke is a lawyer, author and business consultant. She is currently helping professionals all over the world initiate, strategize and implement strategic business and marketing plans through various mediums of consulting resources and legal direction.
Hi, I’m Rachel Brenke
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