{"id":71334,"date":"2022-09-07T10:10:34","date_gmt":"2022-09-07T14:10:34","guid":{"rendered":"https:\/\/blog.myewm.com\/?p=71334"},"modified":"2022-09-07T10:10:34","modified_gmt":"2022-09-07T14:10:34","slug":"dont-even-think-about-using-an-online-photo","status":"publish","type":"post","link":"https:\/\/blog.myewm.com\/?p=71334","title":{"rendered":"Don\u2019t Even Think About Using an Online Photo"},"content":{"rendered":"
\n

Found a sunrise photo from your community that is so beautiful it makes \u201clife in paradise\u201d appear almost magical? It\u2019s ideal for marketing? If so, don\u2019t use it. Get up early and take your own sunrise photo. Copyright issues often create expensive headaches.<\/h4>\n<\/div>\n
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FORT LAUDERDALE, Fla. \u2013 The photo of that beautiful sunrise you found through a Google search? It would look great on your Airbnb website to show guests how nice South Florida\u2019s beaches can be in the morning.<\/p>\n

Just copy and paste it next to the pic of that charming beachfront cottage you\u2019re renting out.<\/p>\n

Perfect \u2013 until you hear from an attorney representing the owner of that photo. The letter says you committed an act of copyright infringement and you need to cough up a good chunk of cash if you want to avoid having to defend yourself in federal court.<\/p>\n

You\u2019ve just learned that the free-wheeling internet isn\u2019t so free.<\/p>\n

A phone call alerted John Abdelsayed, a Realtor with the West Palm Beach-based Trends Realty USA Corp., that he was being accused of illegally using a photo as a profile image of a community that included a property he was trying to sell.<\/p>\n

\u201cAt first I thought it was one of those IRS scams \u2013 you know, \u2018send money now or someone will be at your house to arrest you.\u2019 I had used a photo from the MLS [Multiple Listing Service] but thought I was allowed. Then I got a demand letter and thought it was a scam,\u201d he said. \u201cIt wasn\u2019t until they filed suit that I realized they were serious.\u201d<\/p>\n

The letter demanded $30,000 to avoid litigation, Abdelsayed said. The lawsuit, on behalf of Palm Beach County-based Affordable Aerial Photography, sought up to $150,000, but rulings in the case since then make that outcome unlikely.<\/p>\n

Content and controversy<\/h3>\n

Twenty years after the music-file-trading service Napster alerted content providers to the ease and volume of copyright infringement activity online, internet users are still helping themselves to content they don\u2019t own and paying thousands of dollars when they get caught.<\/p>\n

And as the infringement continues, it has resulted in a \u201cslow but steady\u201d increase in the number of content owners, attorneys and paid services that look for violators and target them, says Mitch Stoltz, a staff attorney focusing on intellectual property at the Electronic Frontier Foundation, a nonprofit organization that advocates for free speech and privacy rights protections online.<\/p>\n

Even posting a photo you don\u2019t own on a social media site such as Facebook or Instagram can make you a target if your page promotes a business or if you are a recognizable brand. NBA star LeBron James and NFL quarterback DeShawn Watson learned this when they were sued for posting in-game images of themselves taken by freelance sports photographers on their own social media pages. Both athletes chose to settle the claims.<\/p>\n

And in the new copyright frontier, photographers are suing companies who use their social media posts containing copyrighted content and embed them on websites \u2013 something that tech giants such as Facebook and Instagram make easy to do.<\/p>\n

Either way, infringers pay<\/h3>\n

Most enforcement activity takes one of two forms, Stoltz says. \u201cThere are lawsuits trying to uphold people\u2019s rights to their creative work, and there are suits basically trying to make money off of threats to litigate,\u201d he said.<\/p>\n

Which is which depends on the content owner and the law firms pursuing claims, he said. But one thing is certain: If you get a letter demanding payment to avoid litigation, you\u2019re going to pay. You\u2019ll either pay to avoid a lawsuit, or you\u2019ll pay an attorney to defend yourself.<\/p>\n

In U.S. District Court in South Florida, a handful of businesses have been showing up again and again as plaintiffs in copyright-infringement suits. One is Strike 3 Holdings, a Delaware-based company that sues people who use file-sharing sites to download adult movies. The company files suit against defendants based only on their IP addresses, then subpoenas internet service providers for the names of customers using those IP addresses.<\/p>\n

Three are photography studios. Affordable Aerial Photography, which takes photos of high-end South Florida homes for real estate listings, has filed 134 lawsuits since 2014, including 89 in the Southern District of Florida dating to 2020. Its targets are mostly real estate agencies but include insurers, a wealth management group, resorts and web-design firms.<\/p>\n

Another is Prepared Food Photos, a Lake Worth company that sells subscriptions for access to hundreds of stock photos of popular restaurant-style dishes, meats, seafood and produce.<\/p>\n

The studio has sued 58 businesses, including 22 in South Florida ranging from produce wholesalers, meat suppliers, food delivery services and small restaurants.<\/p>\n

Blaine Harrington, a Denver-based travel photographer with more than 45 years of experience working for national magazines, book publishers, nonprofits and large corporations, has filed more than 100 infringement suits since 2017, including 21 in South Florida against a variety of defendants, including hotels, travel agencies, yacht brokers, tourist attractions, and even Monroe County over a photo taken in the Florida Keys.<\/p>\n

Attorney: Creators deserve to be paid<\/h3>\n

Daniel DeSouza, a Coral Springs-based attorney and partner in the firm CopyCat Legal PLLC that represents the three photography businesses, says his clients deserve to be compensated for commercial use of their work. Failure to protect their content, he says, could lead future infringers to claim that the creator must not care if their work is used for free.<\/p>\n

\u201cIf you have an aggressive client, often they will be called a copyright troll and too overly aggressive,\u201d he said. \u201cTaking the opposite approach can be construed as allowing infringement. I\u2019ve had too many suits where the defense is, \u2018This person didn\u2019t protect his copyright.\u2019\u201d<\/p>\n

Harrington has taken 500,000 images in over 80 countries and about 50,000 are posted on his website, he says. Because he has disabled the ability to directly download his images from his website, infringers can only obtain them by taking low-resolution screenshots or finding them on other websites.<\/p>\n

Harrington\u2019s website is plastered with copyright notices. One says that no photos on the site \u201care within the public domain.\u201d<\/p>\n

And yet a reverse image search of one of Harrington\u2019s photos \u2013 a pastoral view of a road winding through Kentucky horse country \u2013 turns up 624 uses across 16 pages of Google search results.<\/p>\n

On the Wikimedia Commons site, where creators post images for royalty-free use, the photo is credited as owned by someone else and labeled as freely available for any use. Users who rely on that assurance risk an infringement suit.<\/p>\n

DeSouza says prolific content providers such as Harrington must rely on third parties, including law firms that practice copyright infringement law, to protect their rights. \u201cHe has 500,000 photos,\u201d DeSouza said. \u201cIt would take this guy 85 years to track all infringements.\u201d<\/p>\n

In an interview, Harrington said he has been portrayed by opposing attorneys as a copyright troll \u201cwho puts this material out on the internet solely for the purpose of hooking infringers.\u201d<\/p>\n

He takes issue with such accusations, as a sought-after professional who has been shooting high-quality photographs since the 1970s for magazines such as Time, Forbes, National Geographic and many others.<\/p>\n

In addition to nearly five decades of experience, he has invested about $100,000 in camera equipment, computers, monitors, hard drives, software and a drone. Then there are outlays for travel, hotels, renting helicopters or hot air balloons, and liability insurance.<\/p>\n

\u201cThis is my point of view,\u201d he said. \u201cI took these pictures and I deserve to be paid. I don\u2019t have a lot of sympathy for people who can\u2019t be bothered to find out how to license a photo.\u201d<\/p>\n

Some content creators pay companies, such as TinEye, to constantly search the internet for infringing uses. There are also law firms that perform searches, though DeSouza says his firm is not among them and relies on creators to alert the firm to potential claims.<\/p>\n

And there are content owners who pursue claims more aggressively than others, DeSouza says. Most law firms take copyright infringement cases on contingency \u2013 meaning they only get paid when they win in court or convince targets to settle, because content owners typically can\u2019t afford to pay lawyers\u2019 hourly fees upfront, he says.<\/p>\n

That results-dependent arrangement is why targeted infringers almost always end up paying something. For every lawsuit that\u2019s actually filed, there\u2019s an untold number of targets who pay up to make the threat go away, Stoltz said.<\/p>\n

Typically, content owners resort to lawsuits when accused infringers ignore their initial communications, DeSouza and Harrington said.<\/p>\n

\u201cYou reach a point in negotiations in trying to obtain a settlement that the infringer either is not acknowledging the case or is not being serious about trying to resolve the matter,\u201d Harrington said. Then \u201cit becomes necessary to file suit. In the majority of these cases, if not all of them, this has led to settlements.\u201d<\/p>\n

For Realtors, it\u2019s complicated<\/h3>\n

Most targets of Affordable Aerial Photography\u2019s efforts are Realtors who should know better, DeSouza says.<\/p>\n

BeachesMLS, the listing service for Realtors in Broward, Palm Beach and St. Lucie counties, states on its website that users must obtain written consent of the owners of any intellectual property, including photos from the widely circulated Multiple Listing Service, before using them in their own materials or websites.<\/p>\n

Marla Martin, spokeswoman for the statewide trade organization Florida Realtors, said attorneys for the organization share advice in\u00a0articles posted<\/a>\u00a0on floridarealtors.org.<\/p>\n

But figuring out what\u2019s legal can be complicated for Realtors, says Griffin C. Klema, a Tampa-area attorney who defends targets of lawsuits and demand letters by DeSouza\u2019s clients and others.<\/p>\n

For example, a commonly used website plug-in enables Realtors to display photos and descriptions on their websites that other Realtors have uploaded to the MLS. Realtors who embed the MLS feed on their websites via the plug-in are held blameless for infringing content uploaded by others as long as they post language known as the \u201csafe harbor\u201d provision of the Digital Millennium Copyright Act.<\/p>\n

The safe harbor language must state that the website operator does not have actual knowledge of infringing content, receives no direct financial benefit from the infringing content, has registered an agent designated with the U.S. Copyright Office to receive complaints, and takes prompt action to remove infringing content when notified.<\/p>\n

Some Realtors are under the impression that they are also protected if they copy-and-paste photos directly from the MLS feed onto their own sites, Klema said. That\u2019s not necessarily the case. Rights differ depending on the MLS (there are nearly 600 nationwide) and what\u2019s stated in contracts between the photographers and agents that hire them, he said.<\/p>\n

Professional photographers typically retain ownership of everything they shoot for clients, DeSouza says, and clients license them for specific, limited uses. Anyone else who wants to use a particular photo is responsible for tracking down the photographer and obtaining their own license.<\/p>\n

They should know better but do it anyway<\/h3>\n

Infringers fall into different categories, the attorneys said.<\/p>\n

Some \u2013 \u201clike the son of the owners of a small restaurant who finds a food photo online and publishes it on a website they\u2019re updating for mom and dad\u201d \u2013 are used to sharing images and memes and think they have a right to use whatever turns up in a Google image search, DeSouza said.<\/p>\n

Realtors and website designers, he says, are in the category of infringers who should know better but do it anyway.<\/p>\n

Surprisingly, he says, lawyers themselves are among those who know \u2013 or should have known \u2013 better.<\/p>\n

\u201cIf you click on a law firm website and see a picture of a banana peel, caution tape or a \u2018caution wet floor\u2019 sign, I\u2019d bet you would see those same photos hundreds of times across the web.\u201d He said he doesn\u2019t know why lawyers tend to be copyright infringers. \u201cMaybe they think, \u2018No one is going to find out, so why not?\u2019\u201d<\/p>\n

They\u2019re not going away<\/h3>\n

Experts urge those who receive demand letters to address the matter right away, by negotiating a settlement with the rights owner or hiring an attorney to determine the most prudent path forward. The worst thing people do is ignore letters, emails or phone calls.<\/p>\n

The claims are not going away, and the price to settle will only escalate if ignored, Florida Realtor warned in a 2014 story in its trade magazine.<\/p>\n

Defendants who fail to respond to federal lawsuits can find themselves on the losing end of default judgments that typically cost $50,000, DeSouza said.<\/p>\n

Klema urges targets to hire a defense attorney as soon as possible. They know how to minimize damages or possibly even beat infringement charges, he said. One strategy involves convincing a judge that a claim should be settled for \u201cactual damages,\u201d \u201cstatutory damages\u201d or profits of the infringer, he said.<\/p>\n

Typically, attorneys for content owners will automatically seek statutory damages, which are set by federal law at $750 to $30,000 per infringement if found not to be willful, and up to $150,000 if willful. To be entitled to statutory damages, the content owner must prove that the infringement was committed after the work was registered with the U.S. Copyright Office.<\/p>\n

If the work wasn\u2019t registered before the infringement, attorneys fees cannot be awarded and owners are limited to seeking \u201cactual damages.\u201d As the term implies, that refers to the actual amount of money the content owner lost when the infringer failed to hire them or license their work.<\/p>\n

This can be much less, particularly if the defendant can prove that the damages should equal the content owner\u2019s lost revenue. Profits that the infringer made by using the copyrighted work can also be awarded if they exceed the actual damages.<\/p>\n

Some fight back<\/h3>\n

John Abdelsayed says he decided to fight the claim leveled against him by Affordable Aerial Photography not only because he cannot afford to pay its $30,000 demand but also because \u201cI don\u2019t believe I owe it to them.\u201d<\/p>\n

\u201cI don\u2019t believe I took anyone\u2019s photo. Anything I\u2019ve done, I did with a license,\u201d he said.<\/p>\n

Klema has responded to the Affordable Aerial Photography\u2019s claim with a number of defenses, including by proving that the studio is not entitled to statutory damages and attorneys\u2019 fees because it did not register the photo with the U.S. Copyright Office before Abdelsayed posted it on his site.<\/p>\n

Now the dispute is focused on whether the photo that Abdelsayed used is covered by the registration at all. The photo he downloaded from the MLS site, the two sides agree, was an edited version of the original registered one.<\/p>\n

The photographer changed it by adding five bougainvilleas, adjusting the tilt and cropping the image. He\u2019s arguing that the \u201cderivative\u201d work is covered by the same registration but DeSouza acknowledged his client could lose the case if the judge does not agree.<\/p>\n

Klema and Abdelsayed hope the judge will rule in their favor, and if not, limit any award to an amount that\u2019s \u201cvery, very small,\u201d Klema said.<\/p>\n

DeSouza says it\u2019s rare for an infringement case to advance so far. The vast majority of potential defendants agree to settle before any lawsuit is filed.<\/p>\n

Embedding may be endangered<\/h3>\n

One way that websites have been able to display copyrighted content they are not licensed to use while avoiding infringement claims is by embedding photographers\u2019 social media posts with the content onto their sites, said Stoltz, of the Electronic Frontier Foundation.<\/p>\n

Social media platforms like Facebook, Twitter and Instagram encourage such usage by providing embed codes, and the website owners rely on a 2007 California federal court ruling that embedded posts do not violate copyrights because their content is stored on the social media platforms.<\/p>\n

But a handful of content owners are challenging these uses, arguing that websites, including news site publishers, are infringing when they fail to license content in embedded posts.<\/p>\n

A 2018 ruling in the Southern District of New York affirmed a photographer\u2019s claim that Breitbart News violated its copyright by embedding a Twitter post with the photographer\u2019s image of quarterback Tom Brady. Several media companies have since reached settlements with the photographer.<\/p>\n

And in California, a pair of photographers are appealing a 2021 federal judge\u2019s dismissal of their claim that third-party websites violate their copyrights \u2013 and that Instagram is liable for secondary infringement \u2013 when embedding Instagram posts displaying their photos and videos.<\/p>\n

They claim that the 2007 ruling holding website owners harmless for embedded posts with copyrighted content is now \u201coutmoded and impractical,\u201d according to the website PetaPixel.<\/p>\n

Electronic Frontier Foundation believes that the photographers\u2019 argument \u201cis not what the law should be,\u201d Stoltz said, adding, \u201cbut some courts feel otherwise.\u201d<\/p>\n

New case law requiring website owners to license images in embedded social media posts could dramatically alter options available to traditional news sites and untold numbers of sites that post stories stringing together Tweets, TikTok videos and posts from Instagram and Facebook.<\/p>\n

\u201cEmbedding is the new legal frontier,\u201d Stoltz said.<\/p>\n

By Ron Hurtibise<\/em><\/p>\n

\u00a9 2022 South Florida Sun-Sentinel. Distributed by Tribune Content Agency, LLC. Ron Hurtibise covers business and consumer issues for the South Florida Sun Sentinel.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Found a sunrise photo from your community that is so beautiful it makes \u201clife in paradise\u201d appear almost magical? It\u2019s ideal for marketing? If so, don\u2019t use it. Get up early and take your own sunrise photo. Copyright issues often create expensive headaches. FORT LAUDERDALE, Fla. \u2013 The photo of that beautiful sunrise you found […]<\/p>\n","protected":false},"author":1401,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_expiration-date-status":"saved","_expiration-date":0,"_expiration-date-type":"","_expiration-date-categories":[],"_expiration-date-options":[]},"categories":[9,61],"tags":[],"_links":{"self":[{"href":"https:\/\/blog.myewm.com\/index.php?rest_route=\/wp\/v2\/posts\/71334"}],"collection":[{"href":"https:\/\/blog.myewm.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.myewm.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.myewm.com\/index.php?rest_route=\/wp\/v2\/users\/1401"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.myewm.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=71334"}],"version-history":[{"count":1,"href":"https:\/\/blog.myewm.com\/index.php?rest_route=\/wp\/v2\/posts\/71334\/revisions"}],"predecessor-version":[{"id":71335,"href":"https:\/\/blog.myewm.com\/index.php?rest_route=\/wp\/v2\/posts\/71334\/revisions\/71335"}],"wp:attachment":[{"href":"https:\/\/blog.myewm.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=71334"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.myewm.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=71334"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.myewm.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=71334"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}