Hey! Are You Trying To Get Sued?!
Oh, my babies. I'm here to tell you a harrowing tale. Well, maybe not a harrowing tale, but notably painful, as my butt hurts from all the sitting and researching I've been doing on the subject of using other's work, namely images, on your site.
It all started with this post: Blogger Beware: You CAN Get Sued For Using Photos You Don't Own on Your Blog.
Go on. Go read it. We'll wait here while you scare the daylights out of yourself.
Cliff's Notes:
* If you're using images that aren't your original work, you might be at risk of copyright infringement.
* Using a disclaimer on your site/blog about the images you took from any source, does not give you immunity from the law.
* Agreeing that the copyright remains with the owner of the images (even by disclaimer) is not a safe practice.
* It doesn't matter if you reposted the image with no malice or intent, IE innocently.
* I think, but I'm not sure, that since the time the article was originally published ( a couple of years back), Pinterest's rules have changed. Someone want to weigh in?
~GULP~
After I read the article, and then clicked into the other articles, growing more enlightened with each page, I started doing extensive research on my own. The resounding evidence I found: I might be infringing on someone's work.
ME! INFRINGING!
~faint~
Listen, as a writer, nothing makes me crankier than to have someone use my work as their own. You know, without credit. Writer's see a well-written article and understand the work that went into such a thing. Writing is hard work, yo. This one fact, makes me hyper-aware and respectful of the hard work of other writers and, by extension, photographers.
After ALL THE WORDS had been read, my head was spinning, but I knew what I had to do: I had to go through each and every post/image on my site (over a year's worth) and re-research each image to the source to make doubly sure I wasn't doing something I shouldn't.
I spent three days, 8 hours each day, butt in chair, doing my homework. With each image that got the all-clear, my confidence grew that I had known what I was doing all along. Until...
...my inbox dinged with the very polite, very understanding, very sweet message that I had stolen two pics and could I be a peach and unsteal them?
To say the blood drained out of my head and a chill settled in my chest, is not overstating my physical reaction after I had been so, so, so careful to do the right thing.
The woman whose photos I had inadvertently lifted (I checked twice, just for good measure, and still got it wrong) was incredibly kind to me. She asked me to remove them, which I promptly did, and pointed me to a stock house where I could buy pics for about a buck a shot.
I was horrified and embarrassed, yet thankful she was understanding. After I told her I had taken them down, and apologized again, she thanked me for being so nice about it.
No, no, no....thank you!
Not long after that conversation, I made the decision to only use my original work or stock that I buy.
I sat, butt in chair, for 12-hours on that last day. I felt nothing was more important than setting my site right, which meant taking down all the images that weren't mine. Not only on my OMT! site, but on all my social media. Holy crap. So much work.
The next bleary-eyed morning, my site/s looked like small bombs had gone off...OMT, where are some of your images?! I told myself that it was a new day. No use crying about the unexpected bumps in the site-building road, just get to work fixing what I could.
Later that morning, feeling like I had my shit handled, I spoke to a wonderful friend who happens to be a lawyer. I recounted my story and told her about my new rule of only using original work/stock photos. She sent this chilling gem my way:
* There's not even a guarantee that you'll be safe using stock photography. I had a lawyer friend who works for a company call me to ask me what to do, the company had paid a graphic designer to do their web page, and the dude had used stock photos, and turned out, the site licensing them didn't even have the right to do so!
Two things:
1) Note to self: you now have permission to crack in half.
2) Everyone should have a lawyer friend that says dude, especially a badass gurl lawyer. Shout, J!
My new new rule is this: Only my images/graphics get to grace my site. Mrs. Tucker wants to sleep at night; this should do it.
I belong to two facebook groups of bloggers, where we talk about and share all things bloggy, and it's interesting to see the responses to this issue. Each group has someone that knows someone (or themselves) that have either been threatened with a lawsuit or had to get lawyers involved. Before doing my research, I would have never suspected this issue to be so prevalent.
Dear bloggy/site-building friends, let this be a cautionary tale from me to you: even if other bloggers are putting disclaimers on their site, even if all your well-meaning blogging friends tell you it's OK, even if you do your due diligence, even if you think your chances are slim-to-none to getting caught, even if you spend hours with butt in chair going through all your images, double-checking to make sure you aren't violating the copyright...you still might be.
Horrible, but true.
Like the gal who wrote the article linked above, OMT! is not a lawyer and this should not be considered legal advice.
Consider it sound business advice. The benefit of using an image you love that doesn't belong to you, does not outweigh the risk of running afoul of the law. Period.
Unless you're just trying to get sued.
Thanks for linking up at Saturday Dishes.
Blessings,
Diane Roark
recipesforourdailybread.com
Before I went into interior decor, I was an artist... and when the sh*t hit the fan with Shepard Fairey using Assoc. Press pix for his Obama artwork, I buckled down on myself. I think too when you're an artist, you're more aware of what it feels like with someone plagiarizing your work.
I like to use Fotolia for stock photos and backgrounds. Yes, you have to pay, but there is peace of mind in knowing you are agreeing to specific licensing terms. And many I've used allow for editing the images and using personally.
Thanks for pointing all of this out! It needs to be said more!
I wouldn't mind paying if I was absolutely sure I was covered. Thanks for the cautionary tale as an artist. Appreciate you coming by and joining the conversation.
I try to use my original art work in my blog but sometimes I am doing something and I need a picture of what I just made which was printed from some other site and it makes me nervous but it is my own picture or something else printed. I even gave credit for the original picture but I didn't post that picture. It all makes me nervous and that is why I don't have a blog that makes money because I hope that people will be a little nicer if they realize that I am not making any money off their ideas and trying to do the right thing. Hard to know what we can do when lawyers don't even know. My cousin made me a few banners for my posts which were super cute so I asked her where the stuff came from and I went to the site and it specifically said that you couldn't use the patterns for blogs so I didn't use them. She asked why and I had to tell her that I couldn't because the original website said that I couldn't 🙁 I felt bad but not as bad as I would if I got in trouble.
I don't think copyright laws differentiate between blog/sites that make money or don't make money. Using images without permission is a risky move and using a disclaimer or giving credit may not be enough to protect against legal action. For me, it's not worth the worry (or possible drain on resources), not to mention I wouldn't want my images to be used without permission.
You might want to ask your lawyer friend to define Mens Rea to you. It is a latin term used in Law to define guilt. If you've done everything you know to be honest and "do the right thing" then you do not have a guilty conscience and are therefore not guilty. If you purchase a picture from a dishonest site, YOU ARE NOT GUILTY OF COPYRIGHT INFRINGEMENT!
Since the prosecution cannot prove that you meant to steal anything you are safe. You just have to firmly believe it and stand up for yourself in court. If the prosecution still wants to press their case, they would have to do so with the site that is selling infringing photos. In law it is less about who is right or wrong and more about how well you stand behind what you say and do.
If your lawyer friend doesn't understand this she might want to go back to law school. It is one of the basic principles of law.
I'm gonna have to disagree here. I'm willing to bet that there are folks who thought they did everything they should, who felt certain they weren't guilty, but broke the law nevertheless and were sued. I personally know a women who was sued by the IRS because she unwittingly committed fraud/theft on her tax return (husbands took "care of it" and all they had to do was sign). Prior to that, she had a clear conscience and thought she was doing the right thing.
You're discounting the fact that even if the blogger is unsuccessfully pursued, there still may be expensive lawyers fees and a giant headache. My post was meant to enlighten bloggers to the risk they may be taking.
I'm open to a healthy debate, but there is no need to be insulting.
I'm with you on this, Mrs. Tucker. Mens Rea is a CRIMINAL law concept. So is "Innocent till proven guilty." So is the "right to remain silent." Copyright infringement is a CIVIL law issue - Criminal law concepts do not apply.
Interesting. To say that because one believes that they have done the right thing, therefore they aren't culpable, doesn't make it so. Bloggers/site developers must comply with copyright laws regardless whether they believe in them or not, or face the risk of legal action. It is that simple.
Thanks for joining in the conversation.
Sorry Joelle,
I have to weigh in here. I *AM* a lawyer, licensed in the state of TX, registered before the U.S. Patent and Trademark Office, and specializing in Intellectual Property law. You are very clearly incorrect.
Title 17 U.S.C. is the Copyright Code, and does not require any element of intent for infringement. Various states have additional laws relating to copyright (either as copyright or unfair competition, some criminal statutes and some civil torts), and those that are criminal may vary as to whether any criminal intent is required. Damages may be less severe for "innocent" infringement, however, you can definitely still be sued, and possibly prosecuted criminally.
(As an aside, there are other crimes that do not require mens rea either, e.g. statutory rape).
There you have it. Blogger beware.
Thanks for weighing in, Jonna.
There's a whole section of the FBI that does nothing but pursue copyright infringers and corporate/intellectual espionage, two of their agents are here in Houston, and they give a downright thrilling continuing education seminar (you know, compared to other super sexy topics like patent prosecution best practices after recent legislative change..... snore)
Dark sunglasses, all business? I kinda want to show up for one of their classes now.
What does this mean for all those bloggers who post round ups?
And which laws apply when the two parties involved live in different parts of the country or in a different country?
You're really freakin me out.
I'm not a lawyer (nor do I play one on the Internets!), so I don't know the legal answers to your questions. What I can tell you is what I do know: using any image that isn't your original work without expressed permission is a violation of copyright laws.
Bloggers who participate in linky parties and are featured in round-ups or features seem to be open to the idea of spreading their work, which might make those who use their work less concerned about copyright, but for me, in my newfound paranoia, I would send an email and get permission before using anyone's work.
I understand your concern. Sorry for the freak out.
Lawyer back again. I don't understand exactly what a round up is, but it sounds like you are linking to blogs written by others. If I were you, what I would do is zap them a quick message PRIOR to posting, and obtain permission via email prior to using an image or thumbnail (though there's some case law relating to Google searches that might make thumbnails ok) in a post. If you cannot get permission before you want the blog to post, I would *not* post an image, but simply a link to their blog (which would be the MOST conservative way to handle this, although less aesthetically interesting, just on the chance that your blogging friend does not himself or herself have permission to the photo they have posted).
^ This.
Thanks again, Jonna. You ARE a lawyer and you DO play one on the Internets!
Great post. Thanks for the info.
Pinned it!
~L
Thank you!
Thanks so much for all the research you did which allows us all to benefit. This is definitely a great reminder and helpful info!
Happy to pass it along.
Thanks for addressing this issue, Patti. There's the concept of "fair use" in copyright law which allows you to use other people's work in certain circumstances, but my husband who has a law degree concentrated in intellectual property law like to say that fair use is the right to hire a lawyer and get a judge to decide.
LOL! That's pretty much what I've been told by lawyers. That's why I won't risk it.