Consequences of not following third party photo usage restrictions
Q: What happens if, notwithstanding your best intentions, a 3rd party photo usage restriction escapes your notice and your lapse is detected by the photographer or stock agency?
A: Steve Gillen, lawyer and partner in the intellectual property firm of Wood Herron & Evans:
“Well, about the best you could expect is that you will be deemed in breach of your contractual commitment and held to account for what you should have paid for the uses you actually made. More likely, however, is a claim that you have made an unauthorized and infringing use of a copyrighted work outside the scope of any license you might have had. In this event, the copyright owner has some very potent strategic advantages and remedies at his/her disposal:
- Actual damages – They may elect to recover the profits you made from the unauthorized use of the profits they lost from your failure to take and pay for a license.
- Statutory damages – In lieu of actual damages, they may elect to ask the court for an award of statutory damages of up to $150,000 per work infringed in cases of willful infringement or up to $30,000 per work infringed where the infringement was not willful.
- Attorneys’ fees and costs – On top of actual or statutory damages, they make ask the court to award reimbursement of their attorneys’ fees and costs (this can be quite substantial – a lawyers professional association reports that the national average cost to try a small copyright infringement case was $350,000).
- Injunctive relief – They may ask the court to order that you stop the infringing use and that you surrender all infringing inventory and reproductive materials for destruction.
- Takedowns – If your infringement is on-line, they may serve a takedown demand on your service provider, which will likely result in all or a portion of your website being disabled.
- Indemnification obligations – Since copyright infringement is a ‘no-fault’ offense that reaches virtually every party who participates in the reproduction, distribution, adaptation, or public display of the infringing work, it is also likely that your publisher, the printer, and/or ISP will be named as additional defendants, increasing your cost and exposure.
It’s said that you get what you pay for. When it comes to photography, that doesn’t necessarily mean that low price equals low quality. Instead, a low price for a photograph probably means sharply limited rights. So look for a good price, but keep an eye out for the license terms and make certain they cover what you need lest you end up on the wrong end of a fight over photos.”