Is Your Graphic Designer Putting You at Risk for Lawsuits?
Graphic and web designers work hard to create unique and interesting designs for their clients. If you’ve been working with a graphic designer for any length of time, you’ve probably seen how much work can go into the smallest piece of work.
Today’s graphic design is a mix of unique work and pre-existing work like stock images, stock photos, templates, and stamps. Incorporating pre-existing work into a design usually requires obtaining a license, which limits how the final work can be used.
If your designer doesn’t obtain a license and uses someone else’s work without permission, you could be held liable in court through a copyright infringement lawsuit.
- Does your graphic designer obtain the required licenses?
- “Fair use” is a legal doctrine, not a right or law
- What constitutes “fair use?”
- What if an image doesn’t directly generate a profit?
- How a single unlicensed photo puts you at risk for expensive copyright lawsuits
- An image doesn’t need to be registered to be copyrighted
- 5 Ways to avoid copyright infringement lawsuits
- Website development doesn’t have to be complicated
Does your graphic designer obtain the required licenses?
Does your graphic designer obtain licenses for stock photos and other images used to create your images for ads, social media, and your website? If you aren’t sure, it doesn’t hurt to ask. It’s actually good practice to verify that every design you use is completely legal, whether it’s in print or on the web.
Although many professional graphic designers obtain and follow license agreements to the letter, there are a growing number of new designers who don’t. Citing the “fair use doctrine,” many graphic designers believe they can use someone’s work without permission as long as the end result isn’t for direct profit.
While it can be legal to use someone else’s work without permission, the scope of allowable use is extremely narrow and specific.
“Fair use” is a legal doctrine, not a right or law
Many people mistakenly believe fair use is a law that entitles them to use someone’s work as long as the end result doesn’t create a profit. However, “fair use” isn’t a free pass, nor is it a law.
Technically, “fair use” isn’t a right, a law, or a statute – it’s a doctrine courts reference during copyright infringement cases to determine if copyright law has been broken. A legal doctrine is a set of principles with a long history in court that attorneys and scholars use as a reference for deciding a case.
No law exists that gives people the right to use someone else’s copyrighted work without permission. If such a law existed, there would be fewer copyright infringement lawsuits because a law would allow many of them to be thrown out.
Instead, thousands of copyright infringement lawsuits are filed every year, and it’s up to the court to consider whether or not “fair use” exists in each situation. In other words, fair use, as a doctrine, is considered as a defense to a copyright infringement lawsuit and is not a guaranteed right.
What constitutes “fair use?”
As a doctrine, “fair use” has established that sometimes copyrighted work can be used without permission under the following circumstances:
- For some, but not all, nonprofit educational purposes.
- As a transformative/derivative work. For example, using someone’s work to criticize or comment on their work, or using the work in a way that can’t be considered a substitute for the original work.
Even when the above criteria are met, there are additional considerations used to determine fair use, including:
- The impact on the creator. The effect on the future value of the copyrighted work. For example, if the unauthorized use prevents the copyright holder from generating current or future sales, or harms the copyright holder in any way, it wouldn’t be considered fair use.
- The amount of work used. If a large portion of the work is used, it’s often not considered fair use.
- Whether the work was previously published. Using unpublished work without permission is generally not considered fair use.
- The presence of new meaning. Courts consider whether an original work has been changed enough to create a new meaning. This consideration can be quite arbitrary.
For example, an artist named Richard Prince was sued for copyright infringement after appropriating 41 images from a photography book. Prince slightly altered the images, but the court didn’t find his changes significant enough to create a new meaning. However, he won the case on appeal.
Ultimately, it’s up to the court to determine if each circumstance constitutes fair use. Since fair use is commonly misunderstood, it’s imperative to obtain a license for all unoriginal work used to create your final designs. It’s risky to bank on your situation being considered fair use if it ends up in court.
What if an image doesn’t directly generate a profit?
The absence of direct profit doesn’t make a copyright violation disappear. For instance, you might think using a stock photo on your contact page doesn’t matter because you’re not making money from your contact page. A court would likely disagree.
If you get sued for using an unlicensed stock photo on your contact page, the copyright holder would argue that it adds value to your entire website, indirectly contributing to your profits. However, it’s not just profit that makes it illegal to use an image without permission. It all goes back to what’s considered fair use.
How a single unlicensed photo puts you at risk for expensive copyright lawsuits
Many people don’t take copyright law seriously because they believe they should have unrestricted access to everything posted online. What’s the big deal about using a random photo found online? Especially if that photo isn’t that great? Well, the big deal is that using an image without permission is theft.
This is a hard lesson many businesses have to learn through experience. For example, a newly hired content writer was caught using an unlicensed photo that ended in an $8,000 judgment against their employer. The judgment was reduced to $3,000, but that’s still a hefty fine. Other businesses haven’t been that lucky, and have received much higher fines.
United States law allows for statutory damages ranging between $200 and $150,000, plus attorneys’ fees and possible jail time for each offense. Copyright infringement lawsuits are far more common than it seems. Even celebrities get sued for publishing their own photos taken by paparazzi.
An image doesn’t need to be registered to be copyrighted
Some people mistakenly believe that an image must have a copyright notice or symbol to be protected. This isn’t true. If your graphic designer doesn’t know this, and they source images without a copyright notice, you could end up in trouble.
Additionally, a work doesn’t need to be registered with the U.S. Copyright Office to be copyrighted. Copyrights are granted immediately and automatically when a work is created. However, a work must be registered in order for someone to file a copyright infringement lawsuit. Often, creators file the paperwork right before filing a lawsuit.
5 Ways to avoid copyright infringement lawsuits
Although the world of copyrights might seem complex and difficult, it’s pretty simple: only use work you’ve obtained a license to use. The challenge is verifying that all third-party designers are adhering to copyright law.
Here are some ways you can protect yourself from lawsuits arising from third-party graphic designers who knowingly or unknowingly use someone else’s work without permission.
1. Include an indemnification clause in your contracts
Do you have an indemnification clause in your third-party contracts? If not, you need one that will protect you in case you get sued for improperly using someone’s intellectual property.
An indemnification clause won’t save you from getting sued by a copyright holder, but it will allow you to sue the graphic designer who violated the copyright.
For a thorough explanation of indemnification and an example of an indemnification clause, visit the E-Commerce Times for a wealth of information. As always, contact an attorney to make sure your contracts are legal, enforceable, and solid.
2. Request a copy of all media licenses
Whether you hire someone to create still images or video content, request a copy of all licenses obtained for stock media and any media that wasn’t created from scratch.
Your designers shouldn’t have a problem supplying you with a copy of the licenses they’ve obtained while working on your project.
However, you might run into a problem with a designer who isn’t transferring the copyright to you when the project is completed. This type of situation can be frustrating and confusing, but not all graphic designers transfer copyrights to their clients. This brings up the next point.
3. Only work with graphic designers under work-for-hire contracts
Make sure you have a work-for-hire contract with your graphic designers. This will provide you with the copyright. If a designer won’t sign a work-for-hire contract, they’ll likely have a higher price tag for you to own the work.
Paying a higher fee to obtain the copyright is normal, but the cost can be exorbitant. The high cost can also cause some people to disregard the license agreement and proceed as if they own the copyright. This is yet another way to get sued for copyright infringement.
It doesn’t matter if you paid someone to create a design for you – you won’t own that design until they transfer the copyright to you. If you don’t obtain the copyright for the media used on your site, you’ll be bound by your license agreement. If you violate the license agreement, your designer can sue you and probably win.
4. Don’t ask a graphic designer to edit existing images for you
Have you ever seen an image you thought would look great on your website, if only someone could delete the background and crop it a bit? Avoid putting any graphic designer in this position. Some will not hesitate to edit images for you because they don’t know any better.
5. Explain your stance before hiring a designer
Some graphic designers don’t know the ins and outs of copyright law. Before hiring a designer, explain your expectations regarding copyrights. Let them know you expect them to obtain a proper license for every third-party work they use.
Being up front about your expectations is the best way to get graphic designers to comply with copyright law if it’s not already part of their routine.
Website development doesn’t have to be complicated
Certain aspects of owning a website can get complex, like managing copyright law. However, creating a professional website doesn’t have to be that hard.
If you need a website, but don’t want to get caught in the minutia, our expert development team will make it easy. Our professional web developers can bring your vision to life on your favorite platform, including WordPress, Shopify, BigCommerce, Wix, Webflow, Weebly, or Squarespace.
Contact us today and tell us what you need. We’ll turn your vision into reality, just like we have done for countless industries including lawyers and law firms.
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