Recently, I came across this disclosure:
All images on [domain name] are either a) photographed by the blog author(s) or b) readily available in various places on the Internet and believed to be in public domain. Images posted are believed to be posted within our rights according to the U.S. Copyright Fair Use Act (Title 17, U.S. Code.).
Will this disclosure protect you if you get a cease & desist letter from a photographer (or Getty!) accusing you of copyright infringement?
Here’s the thing.
#1. Your Belief About the Law Is NEVER a Defense.
It is true that if you have a good faith belief that you’re not breaking the law, you may not be liable for *willful* infringement (which can double or triple the damage award). But you’re still guilty of infringement.
And you’re guilty anything else illegal or wrongful that you just didn’t happen to believe in, for that matter.
You are presumed to have knowledge of the law. Knowing the rules is your responsibility as a person, website owner, and business owner. That’s just how it works.
#2. Photos That Are “Readily available on the Internet” Are Still Protected by Copyright Law.
Let’s say you invited 40 people to your house for a party.
Does that mean that I can invite over 500 other people? That you no longer have the right to say no? That you no longer own your house?
Obviously not. You still have legal rights over your house. The fact that you invited a bunch of people in for a party (even if you opened your house up to the general public for a big, ongoing event) does not terminate your legal rights.
Similarly, posting a photo in ten billion freaking places all over the Internet does not mean that the photographer gave up legal rights to their copyright. That photographer may have licensed the photo to each site, for a limited term of use. That photo may have been stolen. Whatever—it doesn’t matter.
Photographers are not terminating their copyrights by posting their photos on the Internet.
As such, you don’t have the right to steal them.
#3. Disclosures Don’t Magically Fix the Bad Stuff You Do.
It’s interesting how often people think that they can break laws or violate the rights of others, as long as they post a disclosure about it.
Sometimes you can ask someone to sign a disclosure where they specifically give up rights, like when I had to sign a waiver to go ziplining in Austin. Disclosures (or waivers, to be exact) can only make someone give up their rights if they agree to it—by signing it, or at least checking a box—and sometimes, not even then.
#4. Your Blog is Not Fair Use.
Your blog, and yes, even your personal blog that educates people on how to cook eggs or build homes or find a good pair of shoes, is not a fair use of someone’s copyrighted photo. I don’t care that it doesn’t make money. I don’t care that it is “educational.” I don’t care what you read in some non-lawyer-written article that one time.
Your blog is not fair use.
#5. There is No Such Thing as the “U.S. Copyright Fair Use Act.”
There is a code section (Section 107) of the Copyright Act that codifies court cases listing certain purposes where copyrighted works can be used, such as for parody, scholarly works, or criticism. You may think I’m just being picky, but when I see people mis-stating legal statutes like this, I know that they didn’t consult a lawyer and didn’t even bother to look up the actual rules. Probably cut and pasted from another equally misguided individual. Makes a person look sophomoric.
So, how do you protect yourself from being accused of copyright infringement?
Don’t commit copyright infringement. Taadaa!
Use photos that you take yourself, that are licensed either from the photographer or a legit stock photo site, or that are *clearly* in the public domain (such as photos taken by a government employee in the scope of their job).
Keep a record of the original file and why you are allowed to use it. Then, you should be fine. 🙂
Do you have questions about copyright law or other small business legal topics? Try a Quick Call with Elizabeth!