Take Home Points
- Verify that any images being used in your or your company’s marketing materials (e.g., websites, branding campaigns, print copies, blogs, etc.) are safe to use from a copyright law perspective. If not, consider your options which may involve removing the images and starting anew or taking steps to obtain the authorization to use the images.
- Locate and retain copies of licenses for any stock images you or your company may have procured under a license to use in the materials. If a marketing person/website developer created your materials, obtain documentation from these professionals establishing your right to use the images.
- Don’t panic if you receive a cease-and-desist letter to stop using the images and pay a fee but don’t ignore it either. Reach out to a copyright law attorney who can explain your options and may be able to negotiate a settlement amount.
Background on Copyright Ownership
Online artistic images, graphics, and photographs (“images”) are readily available making them ripe for unauthorized usage. It is important to understand that online images are protected under copyright law. The photographer/creator of the image is the copyright owner from the moment he/she creates a work with two exceptions. First, if the creative works were created in the scope of her employment, the employer is the owner under copyright law’s work-made-for-hire doctrine. Second, if the creator was an independent contractor and assigned all rights in the creative works to the party who hired her to take photos, create images, etc., the hiring party is the owner of the copyright providing the independent creator was the creator of the creative works and therefore had assignment rights. Under these two scenarios, however, the owner of the copyright has simply changed from the creator to the employer or the assignee; the new owner enjoys all associated legal rights in the copyright, including the right to sue for copyright infringement.
Copyright owners may monetize their works by licensing their works to others or selling their works to others. Either way, the copyright owner retains ownership of the copyrighted works absent an actual assignment of its rights in the copyrighted works. For example, when we purchase a book, we own the book, but the author retains the copyright. We may sell our copy of the book, but the unauthorized reproduction of the work would constitute copyright infringement. For licensees, the licensee never owns the work and is only granted the right to use the work in a manner prescribed by the copyright owner (“licensor”). A license or sale of a copyrighted work constitutes permission by the copyright owner to use the work in a manner consistent with copyright law’s protections and any associated agreements (e.g., a licensing agreement). The unauthorized usage of a copyrighted work may constitute copyright infringement.
Online Images and Copyright Infringement Considerations
How does all this relate to online images? Today, technology exists for monitoring the Internet to look for the unauthorized usage of images. Companies such Picrights are retained by copyright owners to send a cease-and-desist letters seeking a monetary payout per infringed work and the removal of the work(s) from the website, social media site, etc. If the image owner has actually registered the allegedly infringed work(s), the owner may sue for copyright infringement if the “demanded” payment is not made. In fact, these types of cease-and-desist letters often threaten acceleration of the matter to a copyright infringement lawsuit if the fee is not paid.
Depending on when the work(s) were registered, the owner may be entitled to statutory damages and an award of attorneys’ fees in a copyright infringement lawsuit. This benefit takes away the burden of the copyright claimant having to prove actual damages associated with infringement if infringement is proven. The cease-and-desist letters often seek a minimum $750.00 per infringed work. This amount is in line with the lowest statutory award available under the law.
If the recipient of the cease-and-desist letter fee is not paid (and the infringing work not removed), a law firm may get involved and file a copyright infringement lawsuit. The fact that the law firm can seek attorneys’ fees is an incentive for both the law firm and their clients to accelerate the original demand letter to a threatened lawsuit. If ten works were infringed, the damages alone could be $7500.00 because the minimum statutory award in many circumstances is $750.00 per work. That is, the damages could add up quickly as will the attorneys’ fees. Ironically, the sought-after statutory award in cease-and-desist letters is often greater than what would ever have constituted actual damages (e.g., loss of licensing fees) under a “normal” copyright infringement lawsuit. Most recipients choose to pay the fees in the cease-and-desist letter to settle the matter as a “nuisance” situation to make it go away.
The Use of Stock Images
What about images that are purchased from stock image agencies such as Shutterstock and Istock for use in marketing materials? These companies are generally a good source to turn to in lieu of cutting and pasting images found directly online. Generally, such stock images are purchased under a license. This means that the license purchaser does not own the image. It is essential to ensure that the licensee is obtaining the right license for the intended usage since different licenses may apply. For example, a stock image licensor should understand the size of the image required, the materials on which the image is to used, and the number of times the image will be used/reproduced. This information will help her select the correct license.
Then she needs to comply with the licensing requirements. For example, is attribution to the original creator required? Are there different licensing requirements for non-commercial use versus commercial use? Is the licensed image only to be used non-commercially? And remember as a licensee, the stock image licensee does not have permission to let others use it. Any other users will need to get their own license although a business entity (e.g., a website designer company) can usually obtain a license allowing multiple employees to have access to and use selected stock images in accordance with licensing constraints for the particular application and client.
Is a stock image licensee safe from a copyright infringement problem? Not necessarily! Copyright protection lasts for decades meaning that an image purchased years ago and traceable by today’s technology years later may expose the stock image licensee to allegations of copyright infringement in a cease-and-desist letter. All stock image licensees should retain a copy of their license showing the date of purchase and the type of license. Proof that the image was properly licensed and not merely “grabbed” from the Internet will help in the event the stock image licensee ever receives a cease-and-desist letter. If the original manner of using the stock image changes, the licensee should review the licensing terms to determine if a license upgrade is in order.
What about a situation where a website developer uses images on a website without obtaining appropriate licenses or authorizations from third parties on behalf of the website owner? The website owner is the one who will receive any resulting cease-and-desist letter. Anybody considering hiring a website developer should make sure that the written services agreement states that the website developer will not use any third-party images for which proper licenses on behalf of the website owner are not obtained for the particular use of the images. Consider including an indemnification provision in the services agreement and obtain a copy of any licensing agreement(s) between the developer and stock image company from which images were licensed.
Conclusions
Recipients of cease-and-desist letters involving online images more often than not believe that copyright owners who pursue their rights are just being greedy – that they are seeking payments far beyond the value of the creation or what the owner could have licensed the work for. Also, many do not even realize that infringement was occurring. Both statements may have merit in some cases but remember that the original creators used their abilities and time to make these creations. They and any subsequent owners have rights under copyright law. Be proactive by obtaining authorization from the start to avoid getting a cease-and-desist letter and thereby minimize your financial risk.
THANK YOU FOR YOUR INTEREST IN THIS ARTICLE. THE CONTENT IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT LEGAL ADVICE.
© 2025 by Troy & Schwartz, LLC
Susan Dierenfeldt-Troy
