When selecting a vendor to provide website development or digital communications, make sure that they provide services that prevent your organisation from legal action due to possible copyright infringement. More importantly, your vendor should help your organisation put in place processes to ensure you manage images and music, understand digital rights and licenses, and save the licenses for images you use.  This is true for digital content used on your website or in social media posts.  Choosing a vendor just because they had a really, really low price to produce your website - but expose you to copyright claims - becomes a quick method to discover that you get what you pay for.

Artificial Intelligence (AI) now makes it easier for copyright trolls to threaten organisations for use of an image they have used online. Here's how to avoid that.

I'm going to paraphrase Corey Doctorow here, who has written extensively on this: "US copyright law provides for $150,000 in statutory damages for wilful infringement. If you violate someone else’s copyright and they can prove you knew you were breaking copyright law, they can hit you for up to $150,000, even if they can’t show that they’ve lost a dime in the process."

Copyright trolls use the statutory damages system to engage in highly automated, mass-scale extortion. For a small business or nonprofit who has used an image or quoted a news article, you might someday hear from a copyright troll, who’ll send you an email demanding, say, $10,000 as a “license fee” for your use of their client’s copyrighted work.  If they don’t pay, they threaten to take you to court, demanding that $150,000 in statutory damages, plus legal fees.  That same image, if you had purchased the license for it, may have cost you $15.

These organisations run automated searches that can identify copyrighted works posted online and then produce an email to the organisation with speculative invoicing and legal threats to anyone identified as having posted a copy of their client's work.

It'll read something like: (I'm using a fictitious company in the email below.)

Dear Business Owner,

As an introduction, Acme Copyright Trolls provides licensing compliance services to third-party content owners.  Please note that Acme Copyright Trolls is not a law firm and I am not a lawyer. Acme Copyright Trolls has noticed that imagery owned by XXXXX News & Media Inc has been displayed on your website. XXXXXX News & Media Inc has been unable to find a license for this usage.

At the end of this message, we’ve attached a visual reference of the imagery and its use on your website. Our goal in contacting you is to ascertain if you hold an active license for this use with XXXXXX News & Media Inc or with any other entity authorized by XXXXXX News & Media Inc to license and distribute the imagery:

• If you do have an active license for the use of this imagery, we kindly ask you to send us your valid license / authorization, by visiting Acme Copyright Trolls website and click on the “I have a license…” link
• If you do not have an active license for the use of this imagery, we request that you remove the imagery from your website.
• Please be aware that removal of the imagery alone will not resolve this issue. We also require payment of compensation in the amount of $1500.00 for the past unauthorized usage of the imagery.
• Please contact us to resolve this matter at telephone number or at trolls@ email address. We would like to resolve this time-sensitive issue as soon as possible and request that you respond within 14 days from the date of this correspondence.
• If you believe you have received this notice in error or have questions, please contact us with your reference number, yada yada.

On behalf of Acme Copyright Trolls and XXXXXX News & Media Inc, we thank you for your cooperation and look forward to assisting you in resolving this matter.

Sincerely,

Chief Troll
Acme Copyright Trolls International Inc.

The problem for small businesses and nonprofits is that they need to understand whether they have breached copyright law or whether Fair Use applies.  The US government's site at copyright.gov explains the law, at least in the US.  It's different in the EU and elsewhere.  It does not provide much guidance regarding the use of images. Fair use is a legal doctrine that permits the unlicensed use of such works in limited circumstances. The doctrine is based on the principle that the public is free to use portions of copyrighted works without permission or payment for purposes such as criticism, comment, news reporting, teaching, and research. As is true for most legal issues, however, precedent impacts interpretations of fair use. An example is if the unlicensed use reduces demand for the orginal work, causing harm.

So, for small businesses or nonprofits, whoever is responsible for digital practices should understand whether they are using images legally online.  A small organisation may have bought a license but can't find it; or they may think it's fair use, but don't know.  Often the cost of legally defending themselves in court by paying a lawyer legal fees is substantially higher than simply settling the email received from Acme Copyright Trolls.

So, to avoid that, here are some best practices.

You should know the following:

Is your image licensed or free?  If licensed, where did you purchase it, and did you retain proof of the purchase?  Many small businesses do not have a dedicated location for storing their licenses. So if Getty Images, for example, sent an employee a receipt by email for your purchase, that invoice might be forwarded to the book-keeper, but a PDF copy of the license may not be printed and saved to a folder containing all licenses for the organisation. If that freelancer, intern, employee or vendor then leaves and the email address is terminated, you no longer have a copy of the license you can easily find. 

Images licenses look like this - and your organisation should have a screengrab or PDF for every image used on your website that you didn't take yourself. This example is a license my company owns for an image I used on this site to illustrate teamwork.  (To prevent theft of the license, the order numbers, etc., have been altered.) 

Institutional knowledge may work under normal situations in small organisations, but we have found that in the event of a sudden death or even when someone leaves, stuff like where licenses were stored get lost.

Master List - Your organisation should have a digital master list in which every relevant digital asset is itemized and this information should be securely shared with at least two senior people in the organisation. This master list should specify where digital licenses are stored - i.e. what the folder is called on which hard drive, backed up where, and where paper copies of those licenses are located, too. This requires a hard copy of the evidence of your licenses. 

Don't trust the image bank account  - Do not assume that the place from which you purchased your licenses will keep those licenses in your account.  If your licenses were purchased by a vendor or an email address that is closed because an employee left, you could lose access to that account.  As an example, I own licenses of royalty-free images distributed by Getty Images on DVDs that I purchased way back in 2004.  Back then you could buy a DVD of licensed, royalty-free images titled, for example 'Scientific Lab Images'. My account no longer shows those licenses, but I have PDFs of the license and thumbnails of the images. Additionally, if you purchased a license of an image and the company from which your purchased the license goes under or is bought out, etc., you still retain that license. 

Expiry and rights - Check when your license expires.  Some news pictures like the rowing picture above, will have 15-year rights. In this instance, the rights are limited to editorial use and not for commercial use. So I can use it to illustrate a concept in a blog post, but I can't use it to sell a product.  Because some images are time-restricted, if you're still using that image after that period, you will need to purchase a new image. Depending on how you're using the image, make sure that you have the correct rights for usage of that image.  The image bank will provide a link on their website to a page that explains the rights of images you're considering buying.  It's a good idea to print that page to PDF and save it, too, date-stamped, when you purchase an image.  The image bank may change the language on that page and what may have been true at the time of purchase may not be apparent years later.

Processes - Do you have a clear process for the use of every image used on the website, social media posts, etc.?  This should include image sourcing, i.e., whether a staff member took the picture or it was sourced from a third party.  If a staff member took the picture, does your organisation own the rights to that picture - i.e. were they taking that picture on behalf of your organisation or as an employee?  Do you have a clause in your employment documents that pictures by employees for the organisation belong to the organisation?  Do you have consent from the people in the pictures - or need consent?  If sourced from an image bank, where are the rights stored?  If a third party - e.g. you carry an news article from a publication about how a staff member's success - is the image properly attributed to withstand a copyright troll email?  Did you contact the publication to obtain consent?  If you did obtain consent, where was the consent stored?

Music

Till now, most of this post has dealt with images.  But what's true for images is also true for music.  If your video editor or media production vendor produces a video or podcast for you, make sure they provide a license for the music or jingle that they might use as part of the B track or as background to the video you're using.  Jingles are usually licensed and in the same way as images are licensed, frequently will limit how the music or jingle may be used - or it may be royalty free.  As with images licenses, make sure you store your copyright or music license in a known folder that's backed up and for which which you have a copy of.  

As with images, if you use music or a jingle for which you cannot prove fair use or show a license, you leave your organisation open to litigation.  What many organisations may not know is that if they wish to use that video or podcast online, it may be possible to upload it to YouTube, but once it's processed, it runs the risk of YouTube flagging the video and not making it public due to possible copyright violation. YouTube and other media platforms run uploads through their own internal AI against their library of licenses to validate music before publishing. In this instance, a non-profit client produced a video in 2007 and they had an email from back then saying they had a license but the video production company had ceased to exist and the music company - and artist - had changed hands in the interim more than once.  So to prove they were in compliance, they had to contact the current company and jump through a number of hoops to obtain clearance for that jingle.  It took several weeks before the license could be furnished to YouTube and the video made public. Re-editing the video and purchasing a new license would have significantly added to the cost of a video for which they'd already paid. 

Who copyright law protects

In case it appears as if I'm making the case that innocent use of copyrighted material is OK, copyright is designed to protect the creative works of authors, photographers, artists, and other creators. It gives them the exclusive rights to use, distribute, and modify their creations. Without these laws, creators would have few redress against individuals and corporations alike stealing their work and using it for whatever purposes they desire without consideration or compensation. The problem is that copyright trolls weaponise these laws without the creator seeing any value and to the detriment of small organisations and non-profits, when it could be resolved amicably.

Audits

If your organisation doesn't know where every image on the site originated, it should run an audit. 

Questions it should ask:

• Did the images come from a website template?  If so, does the vendor that provided those images for that website template have the use rights?
• Where are my licenses saved, and if I get an email from a creator or a copyright troll, can I produce the license for that image?
• Were the images shot by a staff member, and if so, when? Consider adding that information to the metadata of the image on the site.

If you're unsure, contact us to help your organisation ensure that what you're doing will work going forward and that you have safeguards in place in case Acme Copyright Trolls contacts you.  Please note that the advice we will provide will relate to processes you should have in place and a review of your methods.  Please read the disclaimer below regarding legal advice. 

Disclaimer - The information in this article is not intended to and does not constitute legal advice.  Only your attorney or your organization’s counsel can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.

Hero image - screengrab from Getty Images rights discussion page. Incidentally, that page has an excellent process flow diagram explaining whether or not you need third-party permissions to use an image, depending on your use of it.