Small businesses rely on social media for marketing, to build reputation, attract clients, interact with customers and publicize successes. Twitter, Facebook, Instagram and the like all encourage the use of pictures and photographs to grab the reader’s attention and facilitate user engagement. Small start-ups often lack the resources to employ a dedicated marketing director - instead relying on interns, part-time staff or the owner to supply content for the company’s social media presence. Under these circumstances, a seemingly innocent act such as copying and pasting an image from the web onto their own media may unknowingly expose the company to serious financial liability.
The Federal Copyright Act of 1976 (the Act) prevents the unauthorized copying of a work of authorship, such as a photograph. The Act protects the author’s rights in the work as soon as the work is created, or in the case of a photograph as soon as the picture is taken. The author need not register the picture, or place notice of ownership on the photograph to be entitled to protection under the Act.
The Act grants owners certain rights over their works, such as the right to copy, distribute and display the work without fear of losing copyright protection. The owner of a photograph, for example, can display the work on the web without losing his or her rights in the work.
If, in turn, a business owner copies that image to promote his or her business without approval of the work’s owner, the Act allows the owner, under certain circumstances, to initiate suit and recover damages for the infringement. The damages can be actual damages (related to the “harm” to the copyright holder from not obtaining the copyright before posting), or so-called “statutory damages” that include the payment of attorney fees and monetary penalties that can be tens of thousands of dollars. There are a number of factors that weigh on whether these more harsh penalties can be sought, such as whether the work is foreign or domestic, when the work was published, whether the work was registered with the US Copyright Office, and when the alleged infringement occurred.
If you own a small business, it would be prudent to exercise control over your social media, and establish guidelines on who and what may published to support your enterprise. In particular, persons posting to social media should not grab and copy images from the web without knowing who owns the work. When posting images, it is best to (a) use your own photographs or generated images, (2) rely on public domain images, or (3) use images made available through groups such as Creative Commons, a non-profit that provides licenses to creators who want to make their works available to the public to use for free under certain conditions or use a free tool canva to make graphics for your business. Make sure to look for things like watermarks and copyright notices when searching images and don’t post anything you are unsure of.
If you have more questions about copyright protections on images please reach out to us or another attorney for advice specific to your situation or guidance on posting.
This blog is meant for informational purposes only and does not constitute specific legal advice or create an attorney-client relationship. Readers should discuss their specific situation with an attorney.