Are your website pictures infringing copyright? Why a copy and paste might cut into your budget

Many organisations including educational establishments and charities are receiving demands from third parties, such as PicRights, for payment to settle litigation for copyright infringement. So far we have seen this range from hundreds of pounds to thousands of pounds. Claims mainly relate to the organisation publishing images on its website without permission from the copyright owner or without a licence from a licensing agency, such as a stock photograph library, to do so.

Copyright infringement gives rise to a claim for damages suffered by the copyright owner or an account of profits made by the infringer. Damages are designed to put the copyright owner in the position it would have been in if the infringing act had not occurred and, in this case, is likely to be the unpaid licence fee. In most cases of use of photographs on websites without permission, the copyright owner or its representative claims an unpaid licence fee.

It is not a defence to a claim for copyright infringement that the images were published innocently or that they were removed from the website after receiving a complaint. Simply ignoring a letter claiming copyright infringement could see a claim issued in court, which is likely to lead to significant costs, including potentially having to pay the other party’s legal costs.

What is copyright?

Copyright is an automatic right which protects various types of original creative work. Copyright usually lasts for the life of the author plus 70 years from the end of the calendar year of the author’s death.

For example, copyright subsists in the artistic works of Pablo Picasso. He died on 8th of April 1973, which means that, under the current law, the copyright in his artistic works will expire on 31st December 2043. From that point, his works will be in the public domain and permission will no longer be required to copy, adapt or make his work available to the public.

What is capable of attracting copyright protection?

Under UK copyright law, the following categories of work are protected:

1. Original literary, dramatic, musical or artistic works which are recorded in a material form,
2. Sound recordings, films or broadcasts,
3. Typographical arrangements of published editions, and
4. Original non-literary works, such as software and databases.

A photograph is a type of artistic work and is therefore protected by copyright. Copyright in a photograph will be owned by the photographer or the photographer’s employer. The copyright in a work may also be assigned.

It is not necessary for a work to have an express copyright notice attached to it for copyright to subsist in it.

In addition to copyright, the creator of a work protected by copyright also has moral rights to be identified as the author and not to have the work subjected to derogatory treatment.

What is an infringing act?

If a person does any of the following restricted acts to the whole or a substantial part of the work without the consent of the copyright owner, they are committing a primary act of copyright infringement:

• Reproducing the work,
• Issuing copies of the work to the public,
• Renting or lending the work to the public,
• Performing, showing or playing a work in public,
• Communicating the work to the public, or
• Making an adaptation of a work or doing any of the acts above in relation to an adaptation.

Therefore, publishing a photograph on a website without permission would amount to reproduction and communication of the work and infringe the rights of the copyright owner.

What can be done to avoid copyright infringement?

Copyright infringement can be avoided if, prior to publishing a photograph taken from the Internet, the ownership of the copyright in the photograph is established and an appropriate licence obtained, where necessary.

It is not always easy to establish who the owner of the copyright in a photograph is because the photographer might have taken the photograph in the course of employment or might have assigned the copyright to someone else.

The alternative is to source royalty-free stock photographs from a free picture library.

There are some statutory exceptions to copyright infringement which exist under UK law, but these are limited and they do not cover the use of a photograph on a website without permission.

It is imperative that website content is regularly audited to ensure that all works are either licensed, are covered by express permission for use or are original works which are owned by the website owner.

The licence fee for use of a photograph is likely to be considerably less than the cost of dealing with an infringement claim.