I thought this experience would be an ideal learning opportunity for my Followers.
One can easily imagine I manage a number of websites. In addition I am responsible in some way or another for about 600 other company websites. If a digital copyright issue left a person like me feeling naïve, I can only begin to imagine how many innocent people are out there breaking a law without knowing. Roy, an attorney from www.tabererattorneys.co.za, has kindly co-written this article with me. He responded on a public holiday which also happened to be his birthday. If that is not great service I don’t know what is? If you have any need for his legal services please make contact via his website.
I will start with my side of the story and then hand the article over for a professional opinion. I have a variety of websites for business, education, information and marketing. Fortunately I have a team to design and maintain my sites and therefore not always involved with the design or content.
The objective of this article is educational, and sharing snippets from communications will help my readers fully understand the predicament.
Belinda, a Compliance Officer at picrights.com alerted me to an infringement (Image 1). I responded to Belinda with some questions (Image 2) because I had never dealt with this sort of situation before. I waited a few days for a reply and then decided to call.
I confirmed the image was removed. Belinda was friendly and answered a few of my questions, the others she wanted to discuss with her manager before she could offer a response. I explained the image was used under the notion it was a free to use image, and paying would amount to admission of guilt. I did not make provision for such costs.
The graphic related to the infringement was used in an educational article about business, and was a miniscule photo of a store sign depicting a closing down notice of a shop, therefore a photo of a public sign. (See image 4).
A few days later Belinda wrote back to me with an email which included a reduced fine. I responded with a repeated request for answers to my questions. I still did not understand the merits of the demand and was not ready to concede. (Image 3).
A few days later, I received a letter of demand from Belinda’s lawyer. (Image 4). Note the jump in penalty fee. I found point 9 interesting, which says ‘may make you vulnerable’. I don’t understand the uncertainty, surely it either does or does not?
The legal notice, and lack of response to my questions aggravated my attempt to understand the situation. I decided it was time to get my own legal opinion, but before I hand the article over to Roy, let me finish with a few opinions of my own:
- After reviewing some local related laws, it is my opinion South Africa has a far stricter stance when it comes to image use compared to other places like the United States. I prefer the USAs ‘fair usage policy’.
- There is no mechanism in South Africa to mitigate or defend oneself in my situation. How Google gets around these laws I do not know, they re-publish images on their search results and do not have permission from every image owner. Perhaps copyright agencies like to pick on the little guy only?
- Illogical. If you are someone who creates images for sale, why would you not watermark it or remove it from search engines so it does not show up in image searches, or why not make the image only accessible through a portal?
- Entrapment. It is plausible that there are some questionable companies that deliberately choose not to watermark an image and keep them on search engines to entrap innocent people in an attempt to increase revenue.
- A pickle. I believe it is possible for an image agency to sign up an artist / photographer and then enforce a copyright fee months if not years after you have used them. This means even if you used an image that was free at one point, it might very well now be something you have to pay for.
I found some interesting complaints on Google about similar situations:
I liked these two articles:
South Africa has to amend their laws to allow for a reasonable dispute process and fair usage. For now, anyone who wants to be absolutely safe, the only way to achieve this is to remove every image you have ever used on any digital platform if you cannot prove you created it, or have a licence for its use. Failing which, you might very well get an email from Belinda for something you reposted on Facebook, even if it is something as simple as a cat meme. Roy, over to you.
The best place to start is with Jean-Pierre’s warning.
Yes, it is true that you would infringe copyright if you made a copy of an image, published the image or made an adaptation of the image, without permission from the creator. This is because a digital image or photograph qualifies as an artistic work which, along with musical and literary works, are the subject of copyright protection.
To qualify for copyright protection, the work must be original. This means that the author must have originated the work i.e. he or she did not copy or derive the work from another.
Copyright vests in the work automatically the moment that the work is conceived. There is no need to apply for the rights (this is very different from patent and trademark rights for which you have to apply).
With the image now vested with copyright protection, the owner (author) has the exclusive right to make a copy or an adaptation or to publish the image.
Of course, the owner can allow you to do these things with permission. This is called licence. The licence can be free or you may have to pay a once-off or recurring royalty.
There are a few exceptions to the rule that all unlicensed use of an image is an infringement of copyright in a work. The fair-dealing exemption to which Jean-Pierre refers is not available to artistic works (images). This exception applies only to musical and literary works where the purpose is for use in research, private study or use or review.
The only exception with respect to an image, which would not be construed as an infringement, is if it was included incidentally, by way of background, in a movie or TV broadcast.
As is evident, there are very few exceptions and they are very narrow in the scope of use that is permissible.
Now you have an idea of what types of work have copyright and what actions could infringe copyright, what can the owner do to the infringer?
Well, firstly, he would warn the infringer, as happened with Jean-Pierre, with a demand that the infringer stop. It is also typical with this demand that the owner asks for monetary recompense.
The letter of demand (see attorney’s letter in Image 4) is not a legal process. At this stage it is always advisable to heed the warning and to stop the infringement by, in this case, removing the copied image. It is debateable whether the owner of the image is owed any money at this point because the owner has the legal remedy of an interdict (an order to stop your infringing actions which you have already complied with) and damages i.e. a monetary award for the loss the owner has incurred as a result of the infringing action. With damages, this remedy only accrues if the perpetrator of the infringing action infringed knowing the image had copyright or should have known. The owner will have to prove this.
In Jean-Pierre’s case, the image did not come with a copyright warning and so Jean-Pierre’s web team made use of the image unknowingly. The debate, should the owner want to spend large sums of money in litigation to potentially recover a small quantum of damages, would be on the point of whether Jean-Pierre ought to have known that copyright vested in the image.
- Assume all images on the internet are the subject of copyright;
- Assume that there is no free licence to use the image;
- If you have made use of such images, you run the risk of getting embroiled in a legal spat;
- If you do receive a letter of demand, act quickly and remove the image; and
- Don’t tender payment of any money they demand unless you consult with an attorney first.