In episode 15 of Unsure? Insure! we share how to avoid copyright infringement.
It’s not just designers who are vulnerable to accusations of copyright infringement, although copyright claims are some of the most common claims we see against designers.
Whilst designers are more at risk due to creating logos, type faces and designs that may unintentionally resemble existing, copyrighted work, we’ve also seen developers, marketers and all sorts be accused of infringing copyright.
Anybody using third-party content in their work is at risk of copyright infringement. This could apply to images, fonts, videos, music and even showcasing speculative work in your portfolio.
What is copyright infringement?
Copyright infringement is the use of copyrighted work without permission from the copyright holder. This could be using assets such as photos and videos in a blog post without the correct permission, or designing a piece of work that resembles an existing trademark.
To give you an idea of the common types of copyright claims we see at With Jack, we’ve had:
- Designers accused of creating logos or type faces that are similar to existing work
- Licensed assets used on websites without authorisation
5 tips for avoiding copyright infringement
Accusations of copyright infringement can take many forms so here are some best practices to avoid getting yourself into hot water:
- Purchase the license for the asset you wish to use. If this isn't within you or your client's budget use royalty free websites to find assets
- Avoid using trademarked material in your own work. Designing and selling prints of trademarked material like Disney characters can land you in trouble
- You don't have to sell copyrighted material to find yourself on the wrong side of copyright law. Even using speculative work of an existing brand in your portfolio is troublesome
- Get advice around copyright law from an expert. Use the legal advice helpline included in your legal expenses insurance to find out what your rights are
- Use the trade mark license agreement included with your legal expenses insurance to agree terms to license someone's trade mark
Let's look at the different types of copyright claims in more detail and how to avoid them.
Using licensed material without the correct permissions
Quite simply, you’re going to have to purchase licenses for any third-party content that’s licensed. If this is something you can’t afford to do—or a client hasn’t budgeted for—there are royalty-free assets available online.
With these resources, there's no need to pull images from Google search or third-party websites. That's a recipe for disaster. With Reverse Image Search it’s easier for photographers or artists to find websites that are using their work illegally, and some even dedicate resources to finding work that's illegally distributed and try to recoup a fee from you.
It’s best to play it safe in these situations. If you can't locate the asset’s original source, don't use it.
Designing something original that's accused of infringing copyright
If you’re a designer, steer clear of using licensed material in your work. Whilst your professional indemnity insurance includes cover for copyright infringement, it's impossible to defend you if you've used Mickey Mouse, a trademarked character, in your work without the correct licensing agreement.
Sometimes it's not as black and white as that. We've had claims brought against designers where a logo, type face or design was accused of being similar to somebody else's work. What should you do in that instance?
Make sure you keep materials or source files that show concepts and revisions to illustrate how you arrived at the finished product. This will help your insurer defend you if accused of copyright infringement.
Graham, a logo designer, shared his experience of being accused of copyright infringement and how his insurance helped him.
These types of situations are usually just bad luck. There's not much you can do to stop somebody from spotting your work and hurling an accusation of copyright infringement at you. But you can keep source files to show your concepts and revisions, and have a professional indemnity policy ticking over to assist with copyright disputes.
Using speculative work in your portfolio
A lot of designers fill their portfolio with speculative work in a bid to attract the type of clients they want to work with.
Love teacakes and want to reimagine Tunnock's online presence? Whilst there's nothing wrong with displaying speculative work in your portfolio, you must be careful about using trademarked brands. Brand names, logos and assets are all copyrighted and using them without the correct license can land you in hot water. Even if it's just in your portfolio.
We've yet to see this escalate to legal action, but that's because the designers this has happened to have complied with the brand's request to remove the work. However, it's a painful experience when a lot of time and love has went into creating a concept, and not every brand will be reasonable.
You can still redesign a checkout experience for an airline or hotel chain, but it's safer to use an imaginary brand.
Have internal processes for team members to follow
Even if you’re aware of the pitfalls of using copyrighted material, it doesn’t mean everybody else is. I’m surprised by the number of people I speak to who don’t understand what copyright infringement is and how to avoid it.
If you have an intern or a team of people working with you, create a document that outlines your process for using content on your site, client sites or social media.
This doesn't have to be anything complicated. Some factors you might want to include in this written process are:
- The websites you recommend obtaining assets from
- The criteria it should meet
- An overview of licenses (for example, if it's a Creative Commons attribution license then give credit, can the licensed work be modified or used commercially etc.)
This doesn't have to be a lengthy document, but simple guidelines that can get interns or team members up to speed. We have had a claim in the past for a licensed image used on a blog post by an intern who didn’t know what the rules were, so this would have been a simple way to avoid that.
Keep proof of purchase when buying licenses
Believe it or not, we've even seen a copyright claim against a freelancer who had purchased the correct license.
Our customer had obtained the license from a reputable stock photography site and had proof of purchase. This made it an open-and-shut case, but it highlights the importance of keeping receipts when obtaining licenses so that you can easily dispute claims of copyright infringement.
My own experience of having my work distributed illegally
As an ex-freelance photographer, I've been on the receiving end of my work being infringed. I've had companies distribute my photos in promotional material without paying me. It's frustrating to see others profit for free from something you've created.
I never invested much energy into recovering the money I was owed because I was busy running my business. As a freelancer you have to choose where to invest your time wisely because you’re spread so thin as it is.
After talking to another photographer, I've since discovered there is such a thing as a no win, no fee intellectual property lawyer who, if successful, will take a cut of the fee they recover from the unauthorised use of your asset.
In this blog post we are focusing on copyright claims from the perspective that the claim is being made against you, but that route is available and has worked for other freelancers.
I was also a Getty Images contributor and sold photo licenses through their platform. Recently they contacted me about pursuing the unauthorised use of one of my photos. They’re taking the matter to court.
It might not be the content owner you have to worry about (a part-time photographer or small artist who doesn't have the resources to fight copyright infringement), but the distribution partner who has been selling their assets on their behalf and has a lot more funds to pursue it!
Here's what to do if you have infringed someone's copyright
Sometimes copyright infringement claims can be an innocent mistake that cost a few thousand pounds to fix. With the copyright claims we’ve had at With Jack, they tend to be straightforward to handle and none have exceeded £3000 (excluding legal fees). This is because the insurer was able to negotiate a lower fee for damages in most cases.
Here's what to do if you are accused of copyright infringement:
- Remove the asset in question immediately if you don’t have the correct license. If it’s an image in a blog post, delete the image. If it’s a font on a website, remove it and say hello to Times New Roman
- If you have professional indemnity insurance, unintentional copyright infringement should be covered so contact your insurer with details of the claim and any communication you've received
- Do not reply to the accusation until you've received guidance from your insurer. They’ll appoint a solicitor within the jurisdiction of whoever owns the copyright. If it’s a law firm that contacts you about unauthorised use of a German company's trademarked asset, the insurer will appoint a law firm in that jurisdiction. They’ll be looking to reach an agreement on your behalf
- Re-evaluate your process for using third-party media properly and use the experience as a lesson learned
I mentioned above about unintentional copyright claims being covered by your professional indemnity insurance. This means the situation that happened to me—where someone was redistributing licensed photos from Getty Images without paying for them—wouldn’t be covered. It’s clearly not unintentional. This person is distributing photos from a supplier of paid, stock images so it’s an intentional act of using copyrighted images illegally.
Similarly, if you’re a designer and you’re using copyrighted material in your own creations it's unlikely the insurer would be able to defend you. As I mentioned earlier, creating a piece of artwork around a licensed logo or character is not unintentional copyright infringement. You’ve intentionally used licensed work without the correct permission.
To recap, here are the best practices to avoid copyright infringement claims;
- Use royalty free assets from websites like Unsplash or Pixabay, or purchase the correct license
- If you’re a designer, make sure you’re not using licensed work in your logos, artwork and designs
- Create a document that outlines your process for using content including the websites you recommend obtaining assets from and an overview of licenses
- If you're a designer, retain revisions, reference material, concepts and anything that shows how you arrived at the final product
- Keep proof of purchase when buying licenses so you can easily dispute claims of copyright infringement
- Speculative work in your portfolio is fine, but use an imaginary brand
- If you’re accused of copyright infringement and have professional indemnity insurance, contact your insurer immediately because your policy should include protection for unintentional copyright infringement
- If you have questions about copyright infringement and have legal expenses insurance, use the legal advice helpline to seek advice around your rights