Copyright Dangers: Is Your Business at Risk and What to Do

Your business or nonprofit faces copyright dangers on both sides of the copyright law:

• For violating someone else’s copyright, resulting in hefty fines and a public relations embarrassment, and
• For having your creative materials used improperly, violating your copyright but requiring extensive time and money for small organizations to enforce legally.

Let’s look at the reasons for the dangers, and at some practical tips for what you can do to minimize your risk.

The basics of copyright

Copyright is a subject that surfaces surprisingly regularly in our work with clients, which means it has been the subject of several posts over the years. (For the basics on both sides, see Copyright, Creative Commons, Words and Photos: Everything you need to know and Licensing Your Web Content: An Overview of Options.) So what makes copyright an old topic with real-time risks for your small business or nonprofit today?

Copyright infringement penalties can be steep. Someone found to have infringed a copyrighted work may be liable for payment of actual damages and profits, or statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased by up to $150,000 for each work infringed. In addition, an infringer of a work is also be liable for the attorney’s fees incurred by the copyright owner to enforce his or her rights. Willful infringement for commercial advantage may result in criminal proceedings and jail.

Why the dangers

I see the danger of violating someone else’s copyright increasing thanks to the rising confluence of a casual social sharing culture, popular but inaccurate myths, and technical inexperience. In the crunch of daily workloads and pressure to produce with fewer resources, you and your team can readily succumb to one or more of these influences in a momentary lapse of focus. You are violating copyright if you have not gotten express permission from the copyright holder or you are using images that are public domain or an appropriate creative commons license.Inappropriately using someone else’s images for an organization’s blog has led to a series of costly suits for bloggers. (See Legal Lesson Learned: Copywriter pays $4,000 for $10 photo, Roni Lauren on BlogHer, or Accidental Copyright Infringement – Easy, and Expensive!)

On the flip side of copyright infringement, it can be very costly to sue others who violate your copyright when doing so is not your primary business, unlike the image trolls with attorneys on retainer. Mark Schaefer’s recent post tells this side of the story: I am a blogger. In other words, a piece of meat.

Have you checked your vulnerability lately?

What to do

First, let’s run through a checklist of what you can do to reduce the risk of others infringing on your copyright:

1. Include a copyright notice on written material and images you create so there can be no question about ownership.
2. If your work represents a major investment or potential revenue source, register your copyright. (Registering online is a mere $35 but can entitle you to statutory damages.)
3. Consider using a plagiarism tool or anti-scraping service to identify copyright violators.
4. If you discover your work being used without permission or payment, promptly send a DMCA Takedown Notice to the online service provider hosting the material, as well as any directories or listings pointing to it, and to the individual or company you believe pirated your work.
5. If you work regularly with a law firm, ask if they will prepare a “cease and desist letter” on their letterhead to send to the individual or company you believe pirated your work.

To reduce the risk of inadvertently violating someone else’s copyright, here is a checklist of what you can do:

1. Ensure that your entire content team is familiar with copyright basics, plagiarism tools, and this checklist.
2. Create your own images, whenever possible.
3. Search for Creative Commons licensed photos. You’ll find Flickr and Wikimedia Commons there, two favorites of mine. Note that many works licensed by Creative Commons have a licensed “by” requirement, which means you must give credit/attribution to the original creator of the work.
4. Search for public domain images.
5. Purchase images through a stock photo or clip art website (Note that royalty-free images on such sites still require payment of a fee.)
6. Request permission from the copyright holder, or find another image.