The other day, I found myself in a meeting with one of our clients. We were talking about how the company currently gets images to use on social media and elsewhere. And the answer was: They simply take them off other websites or Google Image Search. What a lot of small businesses don’t realize is that this is actually illegal. Because in reality, someone owns the rights to that image. And unless they purchase it or gain the rights from the owner, companies can’t use those kinds of assets in any situation. It can get especially prickly if the image in question involves celebrities or other famous individuals.

And look, we get it. As a small business, who’s going to notice them using an image that many others out there are likely also using? Small businesses also often can’t afford the premier image subscription services such as Getty, Shutterstock, Corbis, or iStock images (which have huge libraries of photos of celebrities and more). Hence, it can be tempting to take shortcuts in creating content.

However, a lack of understanding of copyright law can lead to serious legal consequences. In this blog, we will discuss the common pitfalls that small businesses can face when it comes to proprietary images, video, and text, and how AI technology has spawned a new gray area, in particular.

Proprietary Images & Video

Stealing proprietary images or video is a common and serious violation of copyright law. Period. This includes downloading images or videos from the internet and using them without proper attribution or permission from the owner. The consequences of this violation can be severe, including fines and even lawsuits. In addition to the legal ramifications, when you think about it, using someone else’s assets without permission is also unethical and can damage the reputation of your business.

Is it true that the likelihood of someone coming after your business for a copyright violation is small, given you’re probably not a very noticeable entity? Yes, that is true. But that doesn’t make it any less wrong. Many companies (albeit large entities) have also paid significant fines for violating copyrights by using images they did not have the rights to use:

• • Getty Images vs. Microsoft: In 2016, Getty Images sued Microsoft for using over 100,000 of its images without permission on the Bing Image Widget. Microsoft agreed to pay $9.5 million to settle the lawsuit.
  • The Ellen Show vs. photographer Robert Barbera: In 2019, The Ellen Show was sued by photographer Robert Barbera for using one of his photographs without permission on the show’s website. The case was settled with The Ellen Show paying an undisclosed amount to Barbera.
  • Corbis vs. FedEx: In 2005, Corbis, a stock photography company, sued FedEx for using copyrighted images on its website without permission. FedEx agreed to pay $3.3 million to settle the lawsuit.
  • Wall Street Journal vs. photographer Daniel Morel: In 2012, The Wall Street Journal was sued by photographer Daniel Morel for using his images of the Haiti earthquake without permission on its website. The case was settled with The Wall Street Journal paying an undisclosed amount to Morel.

These are just a few examples of companies that have been fined for violating copyrights by using images they did not have the right to use. So, what can you, as a small business do?

• • Use free photo sites: There are many free photo sites out there such as unsplash.com or Pexels. Or, you can get Canva, which has a huge stock photo library that can be employed by just paying the $12 per month subscription. The photos won’t be as sexy (and none will have celebrities or famous individuals) but they can serve the role of putting in high-quality images in your marketing collateral.
  • Take original photos and video: We often used this blog to talk about the importance of creating original visual assets for your company – even if it’s just shots of employees, your workplace, individuals at work, or videos of executives or staff. That type of content is invaluable.

Copying Text Verbatim

Another common violation of copyright law is copying text verbatim from other sources (otherwise known as plagiarism). It includes copying and pasting articles, blog posts, and other written content without proper attribution or permission. As with images, the consequences of this violation can be severe, including fines and lawsuits. In addition, using someone else’s writing as your own is similarly unethical and not a great look for you or your company.

Again, if you’re small the likelihood of you getting caught is probably also small. However, it’s not uncommon for individuals and companies to get fined for violations. Some examples here include: 

• • Ravi Belani and Andrew Shaw vs. J.C. Penney: In 2012, J.C. Penney was sued by Ravi Belani and Andrew Shaw for copying verbatim from their website in its own advertising and search engine optimization efforts. J.C. Penney agreed to pay $50,000 to settle the lawsuit.
  • The National Expositor vs. Examiner.com: In 2009, Examiner.com was sued by The National Expositor for copying articles from the former’s website and publishing them as original content on its own site. Examiner.com agreed to pay $2 million to settle the lawsuit.
  • Associated Press vs. iCopyright: In 2006, the Associated Press sued iCopyright for copying articles from its website and selling them as part of a licensing program. iCopyright agreed to pay $100,000 to settle the lawsuit.
  • Agence France-Presse vs. Google: In 2018, Agence France-Presse (AFP) sued Google for copying articles from its website and publishing them as part of its Google News service. The case was settled with Google paying an undisclosed amount to AFP.

What About ‘Fair Use’ in Copyright Law

Some companies we’ve spoken with often cite fair use, which is a doctrine in U.S. copyright law that allows limited use of copyrighted material without acquiring permission from the rights holders. However, that use is very limited. Companies may use snippets of content under fair use for certain purposes, such as criticism, commentary, news reporting, teaching, scholarship, and research. The determination of whether a particular use is considered fair is decided on a case-by-case basis and often involves a complex analysis of four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market for or value of the copyrighted work. The debate over what constitutes fair use is ongoing, with some advocating for a more permissive interpretation of the doctrine, while others argue for a more narrow application.

AI Technology and the Gray Area of Copyright Law

The rise of AI technology has created a new gray area in the world of copyright law. AI algorithms such as ChatGPT (which we took a look at earlier) are now able to write original text, including blogs, marketing copy, whitepapers, and more. AI can also now recreate images of famous people that appear to be completely unique but are based on a group of images. This raises important questions about the ethics of using these images and the potential legal consequences. For example, take a look at the two images above that headline this blog. They are, in fact, representations of me. To be more precise, they are close approximations of images of me but not taken from a single image. These were created by a program called Wonder, an AI illustration app (for which I paid $29 lifetime). I inputted 10 images of myself – I realize I have very few decent images of just me – and the computer does renderings of me, based on the photos.

But that’s just a simple example of photos I own so it’s really not an issue in terms of copyright law. But what about a famous person? With this same program, Wonder, I asked it if it could draw me something else: “Draw Bruce Lee from a famous scene in the movie, Enter the Dragon.” I could choose from 4 different styles for how the computer might recreate this. The first one came out within 15 seconds.