In episode 15 of Unsure? Insure! we share best practices to avoid copyright infringement claims.
It’s not just designers who are susceptible to claims of copyright infringement, although they are the likeliest. We’ve seen developers, marketers and all sorts have claims of copyright infringement made against them.
Anybody using third-party content in their work is at a risk of copyright infringement. This could apply to images, fonts, videos, music and more.
What is copyright infringement?
For those that aren’t familiar with the concept, 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 that are similar to an existing trademark
- Licensed assets used on websites without authorisation
How can you avoid being accused of copyright infringement?
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 many 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 now easier than ever for photographers or artists to find websites that are using their work illegally.
It’s best to play it safe in these situations. If you can't locate the asset’s original source, don't use it.
If you’re a designer, steer clear of using licensed material in your work. Make sure you can show the clients you’re designing for concepts and revisions to illustrate how you’ve ended up with the finished product.
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.
Some of the factors you might want to include in this written process is:
- 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 situation.
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 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 time or energy into recovering the money I was owed because I was busy running my business. As a freelancer you have to invest your time and energy wisely because you’re spread so thin as it is. After talking to another photogrpaher, I've since discovered there is a way to successfully recover fees from people and companies using your images without authorisation.
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 these things!
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).
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, any communication you've received or proof of ownership if you have it
- Do not reply to the accusation until you've received guidance from your insurer. They’ll probably appoint a law firm within the jurisdiction of whoever owns the copyright. For example, if it’s a German law firm that contacts you about unauthorised use of a German photographer's photo, the insurer will likely appoint a law firm in that country. They’ll be looking to reach an agreement on your behalf
- If you find yourself in this situation, it’s important to re-evaluate your process for using third-party media properly
I mentioned above about unintentional copyright claims being covered by your professional indemnity insurance. This means in 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. For example, 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 website 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 etc
- Create a document that outlines your process for using content including the websites you recommend obtaining assets from and an overview of licenses
- Keep proof of purchase when buying licenses so you can easily dispute claims of copyright infringement
- 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