By: David Oxenford, Wilkinson Barker Knauer, LLP
Beware – Using Online Photos and Videos in Radio and TV Productions and on Websites Can Bring Lawsuits for Copyright Infringement if Rights are Not Secured in Advance
Everyone who has a computer, smartphone or other Internet-connected device, has probably spent at least some time perusing photos or videos of cute pets or babies, or of the latest amazing (or sometimes amazingly stupid) things that people do. Broadcasters, in particular, with an audience to reach both through their over-the-air facilities and on their websites and mobile apps, may well want to share the content that they have found online. But, a recent spate of lawsuits filed against radio broadcasters for using photos on their websites without permission makes clear that this can lead to issues if done without permission. There have even been claims made against TV stations for taking video found online and repurposing it over-the-air or online as part of their locally-produced programming. Just because someone has posted photos or videos on a social media site does not give permission to anyone else to take those photos and use them in other media. When an individual posts something on a social media site, what they have done is to give that site the right to use the material that they have posted in accordance with the rules of the site on which they have been posted – but the mere fact that a photo or video has been posted on one of these sites does not give others the rights to take those photos and videos and use them elsewhere.
When I make a statement like this in one of the many seminars that I have done on digital media issues, people are always quick to jump up and say – “but isn’t the Internet all about sharing?” While in some ways it is, it really is more a medium for the dissemination of content in one way or another. And, just because a creator of content wants to share that content in one fashion does not mean that the content can be reused by others in a wholly different context.
Just providing attribution to the creator of the content that you want to use is not enough – nor is sharing a link to the site from which the content came. Creators put up their content in places where they can exploit it – whether it is through banner ads, video pre-rolls or other methods of monetization. If you take that content and put it on your site, without first securing permission, then you can deprive the creator of the traffic that they might otherwise get to their own site. Providing a link to copyrighted material is generally different than the issue that I am writing about. Links to articles and other media on the Internet is part of the essence of the Internet. But, links send viewers to the content itself to be enjoyed in its native format, with and advertising or other material that may surround it on the site where it is posted. It is the copying of the material, removing it from the site where it was posted by the rightsholder, which raises the issues.
An article in Inside Radio (8/1/16) (here, subscription may be required to view some content) quotes me in a discussion of this topic. I have also written about this issue before (see, for instance, my article here). In that article, I reminded broadcasters that, contrary to what some might think, unless necessary permissions are obtained, everything on the Internet is not free to exploit on your own site. I have worked with many broadcasters who have received demand letters from the owners of photographs that have been copied from some third-party website and re-used on the broadcaster’s site without permission. Many of the folks who received those claims settle with the copyright holder to avoid the fate of the broadcasters who have been sued – so take these demand letters seriously if you receive one.
Broadcasters can avoid these claims by using only photos that they themselves have taken, or ones to which they have purchased the rights. There are numerous companies who specialize in selling rights to stock photos – and these companies can make photos available at a very reasonable cost. Paying those costs can save a broadcaster lots of money, as copyright owners do not have to prove actual damages when their works have been infringed. Instead, copyright holders can claim what are called “statutory damages” of up to $150,000 per infringement. While a court need not impose penalties that high for every infringement, those high penalties can be claimed, and you’ll see some demand letters asking for the full amount. Other demands will be much more reasonable, and some even provide with ways to make automated payments for the use of the photo and obtaining a release. If there in fact has been a real infringement, if a demand is reasonable, it is sometimes easiest to simply settle rather than fight a prolonged legal battle over the issue.
There are, of course, defenses to any claim of copyright infringement. If you use a limited amount of a video, for instance, where the limited portion is used for purposes of commentary or criticism in a noncommercial context, fair use may be a defense. But, as we wrote here, fair use is a tricky defense, and how a court may view any particular instance of the use of a copyrighted work without permission cannot be determined with certainty in advance. So don’t think that fair use will provide a blanket defense to every claim. There may be other defenses available as well, but the best defense against a copyright claim is to have the rights in advance so that you never face the claim in the first instance.
And, it is not just photographs found on the Internet that can be a problem. In a presentation that I did on digital media issues for broadcasters about a year ago, which I wrote about here, I emphasized that any work created by an independent contractor needs to be cleared for digital use. We have even seen cases of stations who have hired an outside professional photographer to take photos of air talent for uses in a brochure or other physical media, only to receive a demand for additional fees when that photo was used on a station website. Independent contractors generally own the rights to creative works that they produce, unless there is a specific agreement to assign those rights to someone else. That is why you can’t take the photos of your kids taken by the school photographer to the local copy store and make your own copies – the photographer retains the rights. So, when you are buying creative works from an independent contractor, make sure that the creator assigns all rights to the creations to the station, or you may be faced with this same kind of issue as you seek to exploit their creations in new media in the future.
As we wrote here, the Copyright Office itself recognizes that the owner of a photo is not always clear, and last year it began a proceeding to look at the best way to identify the ownership of the rights in photographs and to give copyright holders easier ways to enforce their rights, while at the same time making it easier for users to be able to obtain the necessary licenses for the use of those photographs. But, until new rules are adopted, the burden is on the user to hunt out the owner of photographs to make sure that they have any necessary clearances, whether it be through a direct agreement with the photographer, or through a clearance house like Getty Images. Care now can avoid bigger problems later.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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