That cute cat photo you want to share with your Facebook friends? The inspirational Pinterest post your friend sent you? Or the photograph of the perfect sunset you want to use on your blog?
Beware before you share. Any one of them could potentially get you in copyright trouble.
“The internet did not change intellectual property law,” says Jorge Espinosa
, intellectual property attorney at Espinosa Trueba Martinez in Miami. “It just pumped it up and made it more complicated by making the transfer of information and creative work so much faster and so much more of a thoughtless process.”
The basic rule of thumb, says solo practitioner Michael C. Cesarano
, based in Coconut Grove, is to assume a copyright exists.
“Unless you have something in writing that says you can do it, the law says you’re not supposed to,” he says. “I would definitely check every photograph that I got—or every sound clip, or whatever it happens to be that you’re posting.”
That may be as simple as going to the website the image—or music or text—came from, he says, to see if the owner allows its use, either freely or on a limited basis.
But it’s your responsibility to make sure you have the right to use it in the way you intend, Cesarano cautions.
Otherwise, the owner might send you a takedown notice, asking you to remove the item in question. Ignoring the notice, or refusing to comply, could lead to more serious action, including a lawsuit. And, even though that’s not a criminal action, Espinosa says, “a registered-copyright lawsuit could have some fairly sharp teeth.”
If the court determines that the infringement was willful, it could impose statutory damages of up to $150,000 for each copyrighted work used without permission.
“If it’s truly innocent and if it’s truly a one-time thing and it’s non-commercial, the likelihood of a large statutory damage award is very remote,” says intellectual property litigator Ury Fischer
of Lott & Fischer in Coral Gables.
“Realistically, the courts will always apply the rule of reason,” he says. “The damages are not punitive. It’s not meant to teach a lesson, but ... to fairly address any damage caused by the infringer.”
Actually, many companies hope that people will share links to a copyrighted news article, for example. Social media sharing is, effectively, digital word-of-mouth. The more viral, the better.
But a photographer—or a company that sells stock photos—might not feel the same, especially if you’re using it on a business site or for other commercial purposes.
“There are companies out there whose entire business model is to scan the internet for digital fingerprints of photos that are protected by copyright that they have obtained the right to enforce from the original creator of the photo,” Espinosa says. “And they contact you and demand a royalty payment, a settlement payment to avoid litigation and a takedown.”
“They’ll send you a bill for much more than it would have cost you to license it,” he says. “And there’s really not much of a defense that you have at that point. You either have to pay the license or you have to hire a lawyer. And, generally speaking, hiring a lawyer is going to cost you a lot more than paying the license.”