Common Copyright Concerns Regarding the Use of Copyrighted Images on Client Website

• Jurisdiction: United States,Federal
• Citation: Vol. 18 No. 11
• Publication year: 2014

Common Copyright Concerns Regarding the Use of Copyrighted Images on Client Website

by Walter K. Coronel and David J. Hoftiezer

The advent of the internet era, and the need to cultivate and maintain an online presence, has led to a dramatic increase in image-related copyright litigation. Affordable and effective image recognition software has empowered artists and photographers by enabling them to track any unauthorized use of their images. The same image recognition and indexing technology has been used with great success by copyright claimants in litigation. As a result, clients who regularly incorporate unlicensed images into their websites are practically guaranteed to receive demand letters claiming copyright infringement.

A frequent scenario—and a common client question—relates to the reuse or modification of images found on the internet. Powerful searching algorithms and detailed image indexing make it easier than ever for clients to locate imagery online, and clients are often tempted to incorporate images they find on the internet into their own websites, presentations, and work product. This practice is especially dangerous because clients who use pictures from the internet (such as pictures found using a Google® Images search) often create multiple potentially infringing copies: for example, a copy in the work computer's temporary RAM memory, another on the work computer's hard drive, a third copy on the website server's hard drive, and a fourth copy in the temporary RAM memory on the web server, and so on and so forth. Absent a license, each of these copies may constitute a separate and actionable infringing use.

There are common misconceptions that (1) images can be modified without permission to avoid copyright protections and (2) digital images can be freely copied from websites under the doctrine of "fair use."¹ These misconceptions are dangerous. Modification of an image can create a thin copyright in the "deviate work." However, to be defensible, the changes must rise to the level of being "transformative," a standard that some view as changing and unpredictable. Because of this, it may be necessary to litigate the matter just to determine the rights to the work. Even then, copyright in a derivative work is narrow and does not grant copyright in the original work. As to the second issue of "fair use," the statutory language of 17 U.S.C. § 107 has been heavily—and not always consistently—interpreted by courts. For example...