There are literally millions of pictures on the internet, and most people assume that if it’s on the internet, it is free for others to use, particularly in terms of photos and images. Do not be fooled that if a photo or an image does not have a copyright stamp or symbol on its face, that it is not copywrited, and therefore free. Images may be copyrighted even if there is no copyright symbol or notice.
A simple explanation of copyright law is that if you did not create it, get a license to use it, or purchase it, you are likely in violation of copyright law. Further, copyright infringement is a strict liability offense. If you use someone’s image without a license to use it, you infringe upon their copyright. This is so even if you paid a website designer or other third party and they posted the image without your knowledge.
U.S. copyright law allows a copyright owner who has timely registered a work with the U.S. copyright office to seek statutory damages of no less than $750 per infringing work and up to $150,000 if the infringement is found to be willful. Further, U.S. copyright law allows the copyright owner to recover attorney’s fees and costs in pursuing claims of copyright infringement from the infringer. The combined cost of statutory damages and paying the copyright owners legal fees can quickly add up to an amount that will put an otherwise successful nonprofit out of business.
Consequences of Infringement
If you do use an unlicensed image, you are highly likely to be caught. Several large firms that license images have dedicated computers, called “trolls” or “spiders” that exist solely to search the internet for images that have been used without permission. If one of these firms locates that image on your website, you will likely receive a letter demanding that you remove the image immediately (“cease and desist”) and pay an exorbitant amount of money within ten days or be sued in federal court. A demand of $5,000 for a stock thumbnail image is not uncommon. Sometimes, the amount can be reduced through negotiation; however, if the use was egregious or the claimed license fees significant, these companies are highly likely to pursue the matter in federal court.
Avoiding Infringement Claims
Nonprofits should be vigilant in ensuring all images are properly licensed. If there is an image you can’t do without, contact the site and inquire about obtaining a license to use the image. Alternatively, take the image yourself or obtain a license from a stock image company such as istockphoto.com that licenses images for a reasonable fee. Ensure employees in charge of posting content online are aware of your organization’s procedures with respect to image selection and only obtain images from approved sources.
Ellis Carter is a nonprofit lawyer licensed to practice in Washington and Arizona. Ellis advises tax-exempt clients on federal tax matters nationwide.