Between February and April 2022, a professional photographer from Cologne, Germany, filed nine copyright infringement lawsuits in U.S. federal courts. What makes the cases unique is that in each one, the defendant had a Creative Commons license to use the image for commercial purposes free of charge. Knowing the potential traps associated with these licenses and how they can arise may help your company avoid being the next defendant.
By way of background, Creative Commons is a nonprofit that advocates for broader access to copyrighted works. The organization offers six royalty-free license forms (“Creative Commons licenses”) that allow the use of licensed material, such as images or other content, without an upfront fee. Aside from the lack of a license fee, the six forms have one thing in common: they all require licensees to give attribution (i.e., credit) to the person who created the licensed material. Beyond that, the licenses have significant differences. For example:
- CC BY only requires attribution.
- Material licensed under CC BY-NC is for noncommercial purposes
- With CC BY-SA, any material you modify must also be licensed under CC BY-SA.
While these licenses provide an undeniable public benefit, they can also act as traps for the unwary, as illustrated by the recent cases described in this post. The defendant in each case had a royalty-free license to use the subject photograph(s) for commercial purposes. Yet, each one found itself on the receiving end of a complaint alleging copyright infringement and seeking up to $150,000 in statutory damages for each licensed image. How?
To start, the defendants licensed the photos from a popular photo-sharing website where the only option for a CC BY license is the outdated CC BY 2.0 from May 2004. CC BY 2.0 has strict attribution requirements. Among other things, each copy of the licensed material must have the following to the extent they are provided by the author:
- The author’s name;
- The title of the licensed image;
- The web address for the original image;
- A statement identifying any changes made to the image, such as cropping or resizing;
- A copy of or hyperlink to the CC BY 2.0 license; and
- Any original copyright notices for the licensed image.
But it is not merely the number or nature of attribution requirements that makes this older version of the CC BY license a potential trap. Under CC BY 2.0—unlike its modern counterpart, CC BY 4.0—any mistakes in the required attribution result in the immediate and automatic termination of the license, and there is no mechanism to fix it. Then, an image licensed at no cost can be the source of a $150,000 statutory damages claim.
What’s more, the penalty for an attribution mistake is not just severe, it is also easy to trigger. For example, in one recent case, the German photographer referenced above alleges that the defendant used an image of three cheeseburgers on Twitter without a proper attribution statement. The photographer has a similar image available on a popular photo-sharing website free of charge under CC BY 2.0. The problem is, by including the full title of the work, a link to the original photo, and a link to the CC BY 2.0 license, the attribution statement alone exceeds the 280-character limit on tweets. In other words, due to the technical limitations on Twitter, it is often impossible to provide a proper attribution statement meeting this photographer’s requirements.
CC BY 2.0 was superseded by CC BY 3.0 in 2006, and later, by CC BY 4.0 in 2013. Notably, CC BY 4.0 has a mechanism where a licensee that fails to give proper attribution can fix the issue and avoid liability. Yet, CC BY 2.0 remains the only CC BY option for many popular photo-sharing websites. As a result, a cottage industry has sprung up of infringement monitoring and enforcement services, supported by a cadre of small intellectual property law firms. The services use software to scrape the web for evidence of infringement—including minor attribution mistakes for content licensed under CC BY 2.0—and send boilerplate letters to anyone found to be in violation, often demanding a payment of between $500 and $5,000. Most people settle. Those who do not are often sued for infringement.
This is by no means an isolated issue, as many stock photographers are now using this playbook. For instance, one recent case filed by the German photographer included seven other plaintiffs—all individual photographers who allegedly licensed their works to the Defendant through the same photo-sharing website under a CC BY 2.0 license. Meanwhile, the websites of many popular infringement monitoring services advertise having “over 100,000 [clients] from 120+ countries” (Pixsy) or having “65 Million images in our global network” (Copytrack).
To avoid becoming the next target, companies should have clear policies regarding the use of images on their websites, social media and other materials. While there is no one-size-fits-all (and certainly not something that can be communicated in this brief article), some default rules could be:
- When possible, use images created by the company or its employees.
- If applicable, use images that are available to use under a company-wide license.
- Only use “free” images that are licensed under CC BY 4.0.
- Always assume that images created by third parties are protected by copyright and cannot be used unless you have it in writing.
- Always assume that you cannot use third-party images for any commercial purpose unless you have it in writing.
When we refer to having something “in writing,” it will almost always be a license agreement. You will not own the image, but rather, will have a limited right to use it in a particular way. Thus, the company policy on third-party image usage should include:
- If you license an image you find online, always review the specific terms, conditions and limitations closely to ensure that you can use the image as you intend.
- Try to confirm that the person licensing the photo is the copyright owner or someone acting on their behalf unless it is from an established stock photography agency and their license agreement protects you from infringement claims.
- Always review the attribution requirements in the license, particularly if the image came from a Creative Commons license.
At Pillsbury, our copyright and trademark team has extensive experience navigating these issues. If you have any questions, please feel free to contact us.
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