In the Internet era, every firm has a risk of copyright infringement. Employees copy and paste photos from the internet or embed social media posts to the company’s website or into a press release or news article. Images stored on the company server are renamed, and the scope of rights are no longer ascertainable. Artwork provided to a marketing partner is shared by that partner outside the scope of a license. Rights are believed to be secured for some content, but the licensor is not the actual rights holder. These mistakes happen every day as evidenced by the rapid growth in the number of copyright infringement actions. Between 2010 and 2019, the number of copyright infringement actions filed each year doubled.
The ease of copying content off the Internet is not the only reason that copyright infringement actions have become so common. The Copyright Act provides massive incentives to file even marginal suits due to the strict liability nature of the claim and the availability of statutory damages and attorneys’ fees to a successful plaintiff. A plaintiff seeking statutory damages can obtain between $750 and $30,000 per work infringed and up to $150,000 per work if the infringement is found to be willful but as low as $250 if the infringement is found to be innocent.
There is no way to completely eliminate this risk, but there are steps that a diligent firm can take to minimize and mitigate the risk. Create company policies that require the use of stock photos, stock music, or company created content for all images, video, or sound used on the company’s website or promotional material. Put in place procedures that require usage rights be verified before using or posting content. Keep all digital content stored in a way that makes checking the rights status easy. Not only can these measures reduce the risk of infringement, but having these processes in place and documenting them can provide a strong argument that any alleged infringement was innocent, thereby minimizing potential damages.
Finally, seek training from a copyright attorney as to best practices for the licensing and use of intellectual property and more specific advice from counsel as fewer clear situations arise.