How To Avoid a Million-Dollar Judgment For Using a Picture
A friend of mine writes newsletters for a variety of clients and they often send him photographs and art to include in their newsletters. He always asks if they have permission to reprint the graphics.
Usually the answer is “no.”
When it is so easy to reprint art from almost any Internet source, it is very tempting to ignore copyright law and get yourself into trouble. And when digital cameras and smartphones make “on the spot” photos so convenient to upload, it also creates a danger for your business.
These scenarios can be a problem for all of your publications, but the advent of social media has increased your potential for getting sued. And if you use Instagram, or any of the other platforms that use images in your social media marketing, you need to be fully aware of the legal ground rules.
Using people’s images
Be careful posting pictures or videos of both “civilians” and employees. Using photos of individuals for commercial purposes is against the law unless you have their permission. And by the way, whenever you’re posting about your business in social media, it’s for commercial purposes – even when you aren’t touting a “half off” sale or any specific deal. You need to get a signed model release. Also, when employees hire on with you, be sure a photo release that they must sign is included in their hire documents.
Train employees on the rules. Be sure that anyone who has the ability to make posts in the name of your business understands what is permissible and knows to ask questions when he or she is unsure of the situation. Do not allow untrained employees access to your social media accounts.
Respecting copyright
Let’s get back to my friend and the issues he faces when designing newsletters. Instead of just accepting images from his clients, he asks about permission and when it hasn’t been obtained, he searches for “legal” images. He uses the Google image search and refines his search to include only those images that are “labeled for reuse.” This narrows his search down to images covered by various Creative Commons licenses and images that are in the public domain. He then follows the rules regarding crediting image owners in his work.
Although not as big a problem in small business social media marketing, music is also covered by copyright. Don’t use music without permission. Monster energy drinks got slapped with a $1.7 million jury award after the company used some Beastie Boys music without the proper permissions.
Fair use execptions
Finally, don’t get sucked in by the “fair use” exceptions to these copyright entanglements. The Fair Use Doctrine allows the reproduction of copyrighted materials “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” If you’re a small business using material under copyright in social media, I can virtually guarantee that you aren’t covered by fair use. If you think you might be covered, consult your attorney.
Finally, I often hear people say that it’s better to beg for forgiveness than ask for permission; that doesn’t work at all when copyright is at issue.
