In an age where everything is so much more accessible whether through the Internet or social media channels such as Twitter and Facebook, there is an assumption that an image published publically is available for free use by a third party. Often these images reappear on a third party website, in a presentation or a blog. This is seen as a cost-efficient way of obtaining good quality images without the need for a professional photographer.
In fact, the Copyright Designs and Patents Act 1988 makes it illegal to use an image (whether used in whole, part or modified) without the owner’s prior permission, even if this is “free”. Copyright is an automatic protection and does not have to be registered, i.e. the moment a photograph is snapped the copyright in the image is created and the work belongs to the owner. Equally, both Twitter and Facebook terms stipulate that images submitted, posted or displayed by a user belong to that user. New advanced technology makes it easier for copyright owners to track down unauthorised use of images so there is an increasing risk of being caught out.
The third party is often sent a letter (sometimes threatening in nature) for infringement of copyright and a demand for fees (often excessive fees) is made together with a request to remove or block the publication of the image(s) (an injunction).
What steps can a third party take if it receives a demand letter? The third party has a choice to either:
The third party may also incur costs in updating any website or blog and removing any images which infringe the copyright.
We would urge anyone who has received a settlement demand for breach of copyright not to ignore any settlement demands, it is always best to deal with the issue promptly. We can help you ascertain whether there has even been an infringement and/or whether the fees demanded are reasonable in comparison to the losses incurred. Additionally, ignoring any demands may result in interest and increasing costs such as court/legal fees being payable.
There are many websites which do provide free images and are perfectly legal to use. However, if you do wish to use an image which may be subject to copyright, check with the owner as there may be a small licence fee to pay. Even if a web developer is engaged to build a website and they use the image, the third party end user is still liable for infringement (whether they had knowledge of the infringement or not) as the offence of infringement in this instance is one of strict liability.
Note that if an image is “royalty-free” it does not necessarily mean it is free, this can imply that once a licence fee has been paid by a third party, the third party may use the image numerous times without paying a royalty. An image might be free to use even commercially one day but may later become a licenced image so as time elapses it is good practice to carry out a review of images used in your materials so you are not caught out.
For further information on use of images, protecting images or advice on dealing with a settlement demand please contact the Intellectual Property team.