Organizations are racing to keep up with the increasing demand for visual media. Your brand’s fans constantly want to see new photos and videos, and it can be a challenge to source and share enough content.
In the midst of this hustle, your organization must be proactive about managing image copyright information. Too often, organizations are sued for huge dollar amounts because of image rights violations. Carolyn E. Wright, an attorney who works with photographers and writes the blog, Photo Attorney, explains that there are no excuses for copyright infringement. Under the law, your brand is liable for breaking image rights agreements, even if you claim it was a mistake.
To give you an understanding of the risks, let’s take a look at some examples of image copyright battles between creators and brands.
Shereen Way & Crocs
User-generated content can seem like low hanging fruit for brands, but it’s a risky business. If you want to share your fans’ images, you have to go about it legally.
The New York Times outlines the story of Shereen Way, a mom who posted a photo of her 4 year-old daughter wearing pink Crocs on Instagram, and later spotted the photo on the brand’s website.
Crocs typically posts comments like the one on the photo above to ask for permission to use a fan’s content. But the brand did not post the comment on Way’s photo, and she had not given the #crocsok signal. But even if she had, does a hashtag count as a legal agreement? Brands should not venture down this dangerous path. Instead, it is best to contact creators directly and acquire permission to use content legally.
Brandon Stanton & DKNY
Brandon Stanton’s project, Humans of New York, is a wildly popular photo series that shares powerful images and stories of real people.
"When we go to the parent-teacher conferences, they always tell us that he has difficulty paying attention and can't sit still in his seat, but that he has a big heart and always sticks up for kids who are getting picked on. And that makes me proud. Because we've always told him that it doesn't matter how smart you are, as long as you're a good person."
As the series became highly recognizable, it attracted the attention of clothing retailer DKNY. On his Facebook page, Stanton shared the story of how the brand offered him $15,000 to use 300 of his photos in store windows. When he asked for more money, the brand refused. Then, a fan sent him the photo below – a photo of his work in a DKNY store window.
I am a street photographer in New York City. Several months ago, I was approached by a representative of DKNY who asked…
In this post, Stanton challenged DKNY to donate $100,000 to the Bedford-Stuyvesant Brooklyn YMCA in his name. He later added an update with DKNY’s response, a statement explaining the window was a mistake (the store had accidentally used an internal mock-up) and a commitment to a $25,000 donation to the YMCA.
Mistakes like this can happen all too easily if you do not have a system for managing usage rights. The use of unfinished or unapproved visual assets can be catastrophic for your brand. DKNY’s mistake could have been avoided if the organization had restricted downloads on the internal mockups, and only allowed stakeholders to access the finished product.
Katherine Heigl & Duane Reade
This SlideShare presentation, The Busy Marketer’s Guide to Image Rights Management by Percolate and FlashStock, shares a case study on actress Katherine Heigl’s lawsuit against Duane Reade. The New York pharmacy tweeted a photo of Heigl leaving one of its stores and implied an endorsement, without her permission.
The case study highlights the connection between this new media example and traditional advertising:
In other words, Duane Reade’s social posts are akin to the brand buying a billboard with Heigl’s photo and pretending she endorsed the drugstore.
Social media muddies the lines for brands, because it is so easy to access and share photos. But organizations must keep traditional best practices in mind, even in this new and evolving landscape.
Robert Caplin & Perez Hilton
In The Economics of Copyright Infringement in Robert Caplin vs Perez Hilton, PhotoShelter Co-Founder Allen Murabayashi breaks down the economics of the battle between freelance photographer Robert Caplin and celebrity blogger Perez Hilton. Caplin sued Perez Hilton for $2.1 million in 2013.
Caplin had posted his photos on his PhotoShelter site with a watermark, posted a copyright notice and turned on the site’s “Image Theft Guard” feature, which, as Murabayashi explains, made it clear the photos were not in the public domain. But the blogger took screenshots of the photos and added his own watermark, as you can see in the photo below.
Blatant disregard for a photographer’s rights can result not only in a lawsuit, but also in a PR nightmare for your organization.
Morel & Getty Images and Agence France-Presse
The battle between photographer Daniel Morel and two media companies, Getty Images and Agence France-Presse (AFP), helped set the stage for the legal landscape involving photos and social media. Morel sued the media companies after photos he shared on Twitter were downloaded by an AFP editor and distributed to Getty’s clients. A federal jury ruled that the companies willfully violated the Copyright Act and ordered them to pay Morel $1.2 million.
“We believe that this is the first time that these defendants or any other major digital licensor of photography have been found liable for willful violations of the Copyright Act,” Morel’s lawyer, Joseph Baio, told Reuters.
The case helped define the distinction between retweeting photos and using them for commercial purposes.
Reuters also highlights AFP’s claim that the infringement was accidental:
Joshua Kaufman, a lawyer for AFP, blamed the infringement on an innocent mistake and said the Twitter user who posted Morel’s photos without attribution bore responsibility for the error. The AFP editor, Kaufman said, believed the pictures were posted for public distribution.
This attempt to shake the blame points back to Wright’s piece, Excuses, Excuses. Brands are responsible for sourcing content legally. Claiming that copyright infringement was a mistake will not hold up under the law.
Don’t let managing image copyright information become a casualty of the visual content apocalypse. It’s too important to get lost in the shuffle. Protect your brand’s reputation by sourcing imagery responsibly, maintaining a visual asset management system that allows you to easily access usage rights agreements, and share imagery according to those agreements.