June 27, 2013
Question:
Jennifer,
I received a letter that on my website a picture I used is the intellectual property of someone else and I have violated Copyright law. What do I do? This was not intended; I just liked the picture and thought I could use it because I found it on google.
Please advise.
Dr. F
Answer:
Dr. F, this is a pretty common circumstance. Many of your colleagues reading this are guilty of the same activity, they just may or may not have been caught yet. In case this is news, those pictures you see on the internet that are not "stock" photos are likely copyrighted and property of another, and you may not utilize same for your pecuniary gain, such as for your personal advertising purposes. Now that we have our basics out of the way, lets address your issue. If you have in fact perpetrated an unauthorized use of a protected photo, you may have exposure. The prior sentence contains a number of legal conclusions that have not been proven at this time. So, the first step upon receipt of a phone call or letter that you are infriniging on a copyright, or trademark for that matter, is to fact find. Is the property protected (actually copyrighted or trademarked)? How did you use it? Do you have a copy? Was it used publicly or in a personal matter? Who is claiming you infringed? Is it spam or junk mail you received or a valid claim? To assist you in this process, contact your attorney. Claims of infringement are serious and should not be ingnored. Once you have identified the mark, owner and the issue, the next step will be to response and to assess your exposure, potential cost and decide on strategy. Again, I recommend working with your attorney. If you have already received a legal letter requesting payment for use or threat of litigation, you already know the owner of the property is not messing around.
You may have a valid defense for the use, such as the copyright claim is invalid because the work was not original or lacked copyrightable subject matter, or that the person claiming ownership actually is not the owner of the copyright. You can also claim the copyright was not properly registered or that the picture was independently created. The most common defense to copyright infringement is called “Fair Use”, which is a defense that the user is permitted to use the copyrighted material in a limited capacity without acquiring the rights because the use given the nature and extent of exposure did not devalue or harm the copyright owner. Examples of fair use include citation of research, teaching, news reporting, search engines and other uses.
The resolution of a potential copyright or trademark accusation varies depending on the facts and parties involved. Whether to pay a license fee, penalty or stand your ground will also vary depending upon the circumstances. Like many areas, the first recommended step is to carefully assess, second step, attempt resolution or defense (or go on offense). To review your particular circumstances, contact me to discuss at (516) 747-6700 x. 302 or at Jennifer@Kirschenbaumesq.com or contact Kate Maguire of our litigation department at (516) 747-6700 x. 305 or at KMaguire@kirschenbaumesq.com.
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