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What to do if employees have used copyrighted material without permission

Photo: Bench Accounting CC0

Finding out that your business has used an image that it does not have the rights to use is never a welcome discovery. If there is no clear license terms on which the image has been used, it may class as copyright infringement. In this case, the business owner legally assumes responsibility, even if they were unaware that the image had been used incorrectly by an employee or other party.

Where does the risk come from?

Unlicensed images making their way onto a website or social platforms without proper permission is not as rare as it sounds. It is as simple as an employee using an image that works with their latest blog post from a Google image search, re-posting something on the company social media page. It could also occur through purchasing the rights to an image for a printed brochure, and then using that image online, on the company website; when rights for digital use have not been obtained. The copyright of an image belongs to the individual who created that image. Permission or license terms must be met for an exact designated use of copyrighted material – no exceptions. 

A business owner is ultimately responsible for the actions of their staff and/or contractors. With that in mind, it is important to understand the possible consequences of unauthorized use of copyrighted work, and the steps that can be taken to avoid it happening in the future.

Understand the potential consequences of unauthorized image use

When a copyright owner finds a case of unlicensed use of their image on a company website, they can choose to take a variety actions.

The copyright owner may choose to contact the business owner independently, hire their own attorney, or choose to take action through a service such as Pixsy. The copyright owner may request that the image be properly attributed to them or taken down. It is more likely that they will offer an opportunity to license the image for retroactive and sometimes continued use of the image. The creator may also choose to initiate legal action to claim statutory damages for copyright infringement. The amount of statutory damages recoverable varies depending on the circumstances and by jurisdiction. In the US, for example, statutory damages are set out in 17 U.S.C. § 504 of the U.S. Code. The basic level of damages for images registered with the United States Copyright Office is between $750 and $30,000 per work, at the discretion of the court. If the creator can prove willful infringement they may be entitled to damages up to $150,000 per work.  

It is a common misconception that simply removing an infringed image, or ignoring a request to license an image for a fair fee will resolve this situation. Resolving unlicensed use with a fair license fee is not only fair to the copyright owner, it is also frequently a first attempt to resolve a matter in an amicable way, without resorting to costly legal proceedings.

Preventing employees from using images without authorization

Once a matter of unlicensed use has been resolved, the next thing to do is to implement systems to ensure this does not happen again.

Here are some techniques to consider:

Creating rights-managed image repositories

When commissioning or purchasing images, save them in a central location (along with the receipt, screenshot and any communications with the image owner), and give access to anyone creating or editing materials on behalf of the business. If such a repository is built into the framework of day to day business activity, it is less likely an employee will search online and use an image without securing the appropriate permissions. If there are rules around the use of each image, group these types together in folders, and label them clearly to prevent confusion. Make sure these image repositories are audited regularly to ensure the licenses are current. 

Establish a clear system for image procurement and use of procured images

If a business requires a constant flow of visual material to support content production (a publisher, for example) it is advisable to establish a clear and well-moderated system for procured images. If there are multiple rights managed images, licensed for one-time use, in business media archive, it would be advisable not to include them in the general image repository, in order to avoid confusion or mishap. 

Using Creative Commons

Creative Commons licenses are an excellent way to access images that are available for legal use, re-purposing and sharing, provided the user rigorously adheres to the terms of the different Creative Commons license agreements. It is extremely important that Creative Commons licenses are used correctly, as doing otherwise invalidates the license.

Hiring photographers

If industry-specific photographs are required, why not hire a photographer to shoot a series of images to suit that purpose? During the contracting phase make sure to clarify the copyright ownership of the ensuing images, or agree upon license terms for their use. If not clearly stated in a contract agreement, copyright of any images created as a part of it could in some cases default to the photographer.

Educate staff about copyrighted imagery

Simply talking with staff about why copyright is important can go a long way in preventing unauthorized usage from occurring. Many people do not yet understand why it is important to procure appropriate licenses prior to using someone else’s work, and that there are legal consequences involved if these permissions have not been sought prior to use.  

Finally, build these processes into contractor, freelance, and agency agreements

Once the above measures are in place, make sure that following these procedures is built into agreements with everyone who works with the business – on site, or remotely.

To avoid complication, the above points should be kept in mind before and when using images on a business website, social media channels or other business communications.

Key Takeouts

  1. Legally, a business owner assumes responsibility for unauthorized image use on their website or other forms of communication channel.
  2. Statutory damage settlements for unauthorized use of copyrighted material can range from $750 – $150,000 per work in the US.
  3. To avoid employees using copyrighted material without authorization on company websites, creating and enforcing company policy on appropriate image use is advisable.

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