What’s lamer than a crappy photo of Nebraska? Having to pay $8,000 in copyright infringement penalties for it.
This is a lesson we recently learned the hard way, and if you have (or contribute to) a blog, you might want to read our story so that you never, ever make the same mistake we did.
We write thousands of blogs every year for our clients and agency partners. Our editorial standards are obnoxiously high, and we do our best to write the best Web content our clients (and their competitors) have ever seen. Although we try to catch everything, occasionally a mistake sneaks by us. Recently we made a very costly mistake, and I think it’s one that every blogger and business owner should be aware of.
It all started when one of our writers posted a blog to a client’s site—it was about finding great deals in Omaha, Neb., complete with an altogether underwhelming photo of the city, which may or may not have been taken by a drunken college student with a camera phone in 2005. You wouldn’t see this photo and immediately go book a vacation there, is what I’m saying.
Anyway, it wasn’t an especially popular post, and we could prove via Google Analytics that fewer than 100 people read it.
More than three months after the blog had been posted, the client got an email from an attorney. This particular lawyer deals with one thing and one thing only: image copyright infringement. For the sake of the story, let’s say his name is Curtis M. Leech, Esq.
The long-forgotten blog that was posted months ago had come back to haunt us. Mr. Leech sent the client a formal complaint letter, saying that they were being sued for $8,000 for using his client’s copyrighted photo on their website.
We were under the mistaken impression that before anyone could be sued, the offender had to ignore a request to take down the copyrighted image. Because the lawsuit came without any kind of warning, and because this was the first time we’d ever been accused of such a thing, we were hoping that replacing the image and sincerely apologizing to Mr. Leech and his client would remedy the situation. We were wrong.
Current Fair Use image copyright laws say that you’re financially liable for posting copyrighted images, even if:
- You did it by accident
- You immediately take down the picture after receiving a DMCA takedown notice
- The picture is resized
- If the picture is licensed to your Web developer (Getty Images requires that you get your own license, thank you very much)
- You link back to the photo source and cite the photographer’s name
- Your site isn’t commercial and you make no money from your blogs
- You have a disclaimer on the site
- The pic is embedded instead of saved on your server
- You found it on the Internet
All of our clients sign contracts stating that they’re solely responsible for all of the content we produce, but we were ethically opposed to making somebody else pay for a mistake that happened on our watch. We called our lawyer, and the negotiations with Mr. Leech began.
Fortunately, we were able to hire a lawyer who negotiated a settlement. We ended up paying $3,000 instead of the original $8,000 in copyright infringement penalties that Mr. Leech was originally seeking. Leech drove a hard bargain, but he did offer a three-month installment plan if we needed the extra time (so know that could be an option, if you ever find yourself dealing with your own Leech).
Now, $3,000 is a lot less than $8,000, but still far from appropriate restitution for our offense. It was the equivalent of several months’ rent at the office, or holiday bonuses for our staff, or a variety of other things we could’ve spent the money on to grow our business or expand our payroll. This was our most costly mistake since starting the business, and in the end I was almost happy to pay Mr. Leech—just so I’d never have to think of him, or the money, or the things that I could’ve done with the money, ever again.
What to know
Ultimately, because we own The Content Factory, the fault lies entirely with Joanie and me. Here’s where we went wrong:
1. We weren’t familiar with copyright infringement laws. In the legal world, there’s no such thing as common sense, so ours did us no favors. The laws are set up to enrich lawyers, probably because they were written by lawyers. We should have done more research about image copyright laws and copyright infringement penalties, and we should have made everyone on our team aware of the potential damage that can be done if we post the wrong images to blogs.
2. We should’ve noticed that the photo used in the blog wasn’t up to par. It just wasn’t a good shot, and there are about 5,000 others would’ve been better suited for the post.
3. We missed seeing that it was a copyrighted image. All of our writers use royalty-free images, and they have a budget for paid photos when the free options aren’t relevant. This was posted by a newly hired writer, and the one time he used a copyrighted image he got caught. None of his other posts had this particular issue, and it was an editorial oversight on our part.
I fully admit that we were at in the wrong—but to the tune of $8,000? That works out to almost $100 per page view. Had we been a smaller company and didn’t think to negotiate a settlement, we could’ve been put out of business.
To be honest, had this happened within the first few months of starting the company, we would’ve probably closed up shop and run back to living one-third of our lives in cubicles, where it’s safe and there’s always health insurance. Make no mistake about it, this practice can be a business killer.
It can happen to you
I’d like to say that we’re just the unlucky victims of an isolated incident, but I’d be lying. It can happen to you, too.
From what we can tell, more and more bloggers are experiencing the same nightmare that we’ve been dealing with. Roni Loren at BlogHer recently wrote about her experience with copyright lawyers, and Web Copy Plus spent $4,000 to settle a similar suit.
In discussing the situation with some of our agency clients, I learned that each and every one of them has been sued before—most of them were able to settle for less than half of the original amount demanded by the plaintiff’s lawyer. This problem isn’t going away, so the only thing you can do as a blog content producer is protect yourself.
You might not find a lot of stories about these ridiculous copyright infringement penalties online, because few people are willing to publicly admit that they “stole” a photo—by accident or otherwise. Few agencies are willing to go on record and say that they made a mistake while working on a client’s account, and few bloggers want to risk their reputations by publicizing such a rookie error.
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We want to help spread the word about copyright infringement laws and their potential impact on small businesses and bloggers, because we want the fewest number of people to be victimized by these legal practices. Until we can change the laws, or the way the laws are applied, we all have to be in cover-your-butt mode.
Kari DePhillips is co-founder of The Content Factory. A version of this post originally appeared on agency’s blog.