What to do if someone claims you have an infringing picture on your website
January 22nd, 2024
What should you do if you get a scary letter on law firm letterhead claiming that a photo on your website or in your social media post infringes someone’s copyright and demanding thousands of dollars in damages?
Your first step should be to call your intellectual property (IP) lawyer. This blog explains the process your lawyer may follow and some ways to potentially avoid such claims in the first place.
Avoiding Website Copyright Infringement Claims
Some people believe that any image found on the Internet or on social media (such as Instagram) is free for anyone else to use and copy.
This is not true.
Just because you can LOOK at something on the Internet doesn’t necessarily mean that you can copy the image onto your own website and publish it. Doing so may expose you to a claim of copyright infringement.
You can find non-infringing images in various ways:
- Take your own pictures
- Hire someone to take pictures for you
- License (pay for) images from agencies like Getty Images
- Use free Creative Commons license and public domain images like those found on Creative Commons
- Use AI tools to generate new images
Option #1 is the least risky. Your original photos generally won’t infringe any third-party rights, even if you take pictures of the same thing.
As the Copyright Alliance explains,
copyright law protects expressions and not ideas, and therefore, it does not protect individual elements such as subject matter, pose, concepts, ideas, or themes of the photograph. Rather, copyright law protects the creative expression resulting from the particular ways a photographer arranges or makes decisions to capture such elements with the camera.
However, people have sometimes been sued when they recreate famous photos.
You can see more information about photography copyrights here.
If you hire someone to take photos for you (option #2), make sure you have a written and signed agreement that gives you ownership of (or at least a license to) the photos. Also, make sure that the photographer indemnifies you against third-party claims for infringement.
Before paying the final bill, you also may want to do a reverse image search to make sure that the photographer you hired didn’t just copy something off the internet.
For option #3, you can either pay for a specific image or get a subscription that lets you use a whole library of images.
For option #4, be sure to check the boxes that limit your search to photos you can “use commercially” and “modify or adapt.” Also, when using images under the Creative Commons license, you’ll usually need to credit the creator. This is easy to do by copying the text in the “Credit the creator” box and then pasting it under the photo on your website. (It can be in small type if you want.) Failing to include the credit can get you sued for infringement even if the image is otherwise free to use.
Using AI “art” tools (option #5) may or may not be a viable option in the long term, as many artists whose work has been used to train such tools have challenged the practice in court, calling it plagiarism.
If an image on your website was posted by one of your users (i.e., not by you or one of your employees or contractors), then the alleged owner of the image may send you what’s called a “takedown notice” under the Digital Millennium Copyright Act (DMCA).
The DMCA protects website owners from liability for acts of their users that infringe third-party copyrights – but only if the website owners follow the DMCA procedures properly.
Also, again, the DMCA doesn’t protect website owners from liability for their OWN infringing acts.
Copyright Owners and Copyright Trolls
If you get a demand letter from a law firm claiming to represent a copyright owner whose photo has been used without permission on your website, the claim may or may not be legitimate.
Some law firms, unfortunately, act as “copyright trolls,” claiming to enforce invalid “rights” in hopes that their targets will pay a nuisance value settlement rather than fight.
Some trolls will even “tag” photos they post online as “bait” so that they can easily find them and send demand letters when others use them.
Whether or not a claim turns out to be legitimate, it’s a bad idea to ignore a letter from a law firm. As noted above, the first step should be to contact your own IP lawyer.
Some other things you can do are:
- Research how the image ended up on your site or in your social media post. Where did it come from, and who posted it?
- Make screenshots of all the pages where the image appears (before you change/remove anything).
- Try to determine the date on which the problematic image first appeared.
- Determine how much traffic you had to the page where the image appeared. How many people saw it?
- Determine whether the image earned you any money. For example, did you use an infringing copy of a photo of a product to sell that product?
Next, after consulting with your IP attorney, you may want to remove the image from your site and replace it with something you’re confident isn’t infringing. This can help show that you’re acting in good faith and reduce the damages if you get sued.
Your IP attorney will probably ask the alleged image owner’s law firm if they can prove that the claimant actually owns the photo and that the law firm has the right to represent the owner.
For example, your lawyer may ask for a sample of the work being allegedly infringed, a copy of the copyright registration, and an authorization letter from the copyright owner to the law firm.
Your lawyer (or an expert) will compare the image on your site to the claimant’s photo to determine whether your image is, in fact, the same.
If the image on your site is infringing, you need to determine how much you’re willing to pay to settle. Your lawyer can advise you on the scope of the risk if you go to court.
Even if you feel that the image on your site isn’t infringing, or the law firm’s right to sue is questionable, you may decide (again, after consultation with your lawyer) that it’s cheaper to settle rather than be sued – even if you’d probably end up winning in the long run.
On the other hand, if the claim is without merit, you may be able to call the law firm’s bluff. They may go away if confronted with a firmly worded letter from your own lawyer asking for documentation of the alleged claim.