March 11, 2013
Ease of Web publishing raises potential for copyright breach
Ignorance doesn't diminish liability
By: Phyllis DeGioia
For The VIN News Service
When Dr. Joe Waldman received a letter from a prominent stock photo company saying a photograph on his clinic website was theirs and he needed to provide proof of licensing or pay them $600 for copyright infringement, he thought it was a joke.
Screen shot by the VIN News Service
Animal Clinic owner Dr. Joe Waldman has been careful to use only original photographs and text on his clinic website after being notified by a stock photo company of copyright infringement.
Waldman, owner of Animal Clinic in Calgary, Alberta, called the photo company, Getty Images, figuring they'd understand when he assured them he had no intent to steal anyone's work.
"I thought there'd be some wiggle room, but there was none," Waldman said. "They were fairly intransigent. I thought you could appeal to the fact that it was an honest mistake. They kept saying 'Don't you think it's unfair that you're using the artist's photo and not paying him for it?' "
As Waldman learned the hard way, copyright infringement can be serious, expensive business. And as more people venture into publishing by creating websites for business, organizations and events, the potential for inadvertent infringement seems greater than ever.
The ease of downloading images or copying text from the Internet may make taking others' material seem OK. Or people may believe they're covered as long as they credit the source of the material. But Raphael Moore, legal counsel for the Veterinary Information Network (VIN), an online community for the profession, warns that unless material clearly is identified as being in the public domain, it must be assumed to be protected by copyright law. That means explicit permission from the creator, or the creator's representative, is required to use it.
Waldman's brush with copyright protections began in early 2010 when he contacted a website developer to update his clinic's site. He provided text he'd written himself; the developer came up with images and design.
In late 2010, Getty sent a letter to Waldman stating that the company could find no record of a valid license for a photo he was using for "online promotional purposes." The photograph in question was of a cute puppy and kitten. Waldman took the picture off the site and called the developer, who accepted full responsibility and paid Getty. Sharing the experience with colleagues on a VIN message board, Waldman cautioned: "Know where the pictures you post on your site come from."
Waldman's situation is a classic case of "innocent infringement," in which he had no idea of wrongdoing. But ignorance of wrongdoing doesn't relieve liability, Moore said.
Stock Photo Rights, a website set up by Getty and supported by other stock photo companies and associated trade organizations, points out that copyright law applies to all images, not just those represented by stock photo companies.
The site explains also that tracking software enables identification of even single unauthorized uses in the vastness of the Internet:
"New technology now enables copyright owners to identify unlicensed imagery and act to protect their rights. Imagery is ‘fingerprinted’ so that it can be tracked and found in use, even if it has been modified, recreated or if only part of the image has been used. The image is then flagged up to the copyright owner so that they can check if the correct license is held."
While text can't be tracked the same way as images, writers can search their name or place blocks of text in search engines to look for infringers.
A U.S. Copyright Office guide defines copyright as "a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works." The guide explains basic concepts, such as that copyright does not protect facts, ideas or news, but rather, the way those concepts are expressed. For example, no one owns the events of 9/11, although many photographs and articles about it are protected by copyright.
Internationally, copyright is covered under the Berne Convention for the Protection of Literary and Artistic Works. While the original purpose of the agreement was to protect written, musical, artistic and architectural works in physical form, digital treaties now in place also protect information disseminated on the Internet.
Besides potentially violating intellectual-property rules, website owners who don't know with certainty the origin of materials on their sites may be vulnerable to questionable copyright claims.
That happened to Dr. Joanna McCoy, a veterinarian in Cambridge, Md., who received a letter in 2011 from a website development company stating that she had used their text and owed them money. McCoy did not think that was true, but because she could not prove the source of the material — some of which was many years old — she settled with the company.
"I still feel like I was wronged," she said. “The thing of it was, I did not have any proof."
For people who take the time to create the words and images for their websites, taking steps to protect original works is important.
Dr. Josephine Banyard, a clinic owner in Chilliwack, B.C., devotes part of her website to client education, using materials she writes herself.
"I'm a lot more savvy than I used to be" about guarding against plagiarism, Banyard said. "I am careful about what I put on Facebook, as well. What I do is: If I have a newsletter, I will print a hard copy, then I scan it and use it as a jpg, so if you want to take my stuff, you are going to have to type it out. A pdf is not safe. If I am putting an image there, I will save it as a jpg, then reduce the resolution so much that when it's copied, it's so bad, they can't use it."
Banyard said that if someone asked for permission to use her material, her answer would depend on which material.
For example, she has an article about the standards of care at her clinic. If someone wants to copy her idea, that's fine, she said, but she doesn't want her document copied. The way she sees it, other clinics should show their own standards of care, not hers. A clinic's website should show images of its own veterinarian(s), veterinary staff and clinic decor.
"If some clinic took my stuff, I would be upset, there's no doubt," Banyard said.
After his run-in with Getty, Waldman, the practitioner whose website developer paid a price for unintentional copyright infringement, has become careful with what he publishes online. Photographs on his clinic Facebook page are taken by him or his staff. Waldman is wary of using even licensed stock photos because licenses may expire.
Waldman said he knows now that he needs to be absolutely certain about his right to use material online. If he's not sure about something, he won't use it. He keeps written permission of any material he has requested to use.
"I don't want to be callous to the needs and financial interests of artists," Waldman said. "I have friends who rely on intellectual property for a living. I recognize that taking things without consent and compensation is bad; I get that. Getty probably has millions of images and they must lose money on a daily basis. It's a hit on their bottom line. A death by a thousand cuts is still a death. I don't know where the middle ground is. From my point of view, it's best to be cautious."
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