Today’s online marketing requires imagery. Imagery is engaging. It captures attention, improves SEO and helps with social media rankings. And, quality images are more accessible now than ever. Here are five issues you should consider when using images and photos in online marketing materials.
1. Most photos and images are protected by copyright.
Just because an image or photo appears online, doesn’t mean that it’s available for anyone to use. Copyright law protects most of the images and photos that appear on the Internet. While there are some exceptions to the rule, if you use someone’s copyright-protected image or photo for your own commercial purposes without first securing permission from the copyright owner(s), you’ve committed copyright infringement. There is no such thing as an innocent infringer. (Giving attribution to the copyright owner doesn’t change this result).
2. You get what you pay for.
Read the fine print in your license (yes, your website builder has granted you a limited license to use those stock images and photos). There are often significant restrictions on how free licensed images and photos can be used. While you likely have permission use them on your website or in blog posts, you probably don’t have permission to use them as trademarks or branding elements. This means you can’t use graphics or designs as a logo, for example, or a cartoon character as a brand icon.
Furthermore, your free license likely provides little protection against a copyright infringement claim. A free license will likely be sufficient to stop the licensing entity from challenging you (so long as you comply with the terms of the license). But, it’s unlikely that a free license will protect you against claims made by others. It’s possible, for example, that the person who initially uploaded your “licensed” photo to the free licensing platform didn’t actually own the photo.
Most unpaid licenses do not include assurances that the licensing site or platform actually has full rights to grant you the license. Nor will the licensing sites or platform defend you if a third party sues or threatens to sue you for copyright infringement. Paid licenses, on the other hand, will usually provide such protection.
3. You may responsible for content posted by others.
You may be legally responsible for content posted or provided by third parties. Make sure that you have the right agreements in place to limit your exposure.
4. Copyright owners can easily find you.
Some believe that the chances of getting caught using a copyright protected image or photo are so low that the money saved outweighs the risks. There are many tools available to copyright owners to help them find unlawful uses of their works. Copyright owners may also hire companies, such as License Compliance Services (LCS), to monitor the Internet for infringing uses of their work and to enforce their copyrights on their behalf.
5. Copyright disputes can be expensive.
In my experience, claims involving the unauthorized use of a single image or photo start at around $1,000 – $1,500. Typically, these images or photos could have been licensed for $30-$50. Costs can increase dramatically if either side gets a lawyer involved.
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Be cautious and seek the advice of counsel before using content belonging to others. Educate your employees and put guidelines in place for using images online, in email and on social media. And, make sure you have the proper agreements in place with content providers so that they’re on the hook if they use unauthorized images. Taking the proper steps to mitigate legal risks may help maximize the enormous benefits of using engaging imagery to promote your business.
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Contact us at info@trademark-counsel.com for more information.