Don’t Even Think About Using an Online Photo

FORT LAUDERDALE, Fla. – The photo of that beautiful sunrise you found through a Google search? It would look great on your Airbnb website to show guests how nice South Florida’s beaches can be in the morning.

Just copy and paste it next to the pic of that charming beachfront cottage you’re renting out.

Perfect – until you hear from an attorney representing the owner of that photo. The letter says you committed an act of copyright infringement and you need to cough up a good chunk of cash if you want to avoid having to defend yourself in federal court.

You’ve just learned that the free-wheeling internet isn’t so free.

A phone call alerted John Abdelsayed, a Realtor with the West Palm Beach-based Trends Realty USA Corp., that he was being accused of illegally using a photo as a profile image of a community that included a property he was trying to sell.

“At first I thought it was one of those IRS scams – you know, ‘send money now or someone will be at your house to arrest you.’ I had used a photo from the MLS [Multiple Listing Service] but thought I was allowed. Then I got a demand letter and thought it was a scam,” he said. “It wasn’t until they filed suit that I realized they were serious.”

The letter demanded $30,000 to avoid litigation, Abdelsayed said. The lawsuit, on behalf of Palm Beach County-based Affordable Aerial Photography, sought up to $150,000, but rulings in the case since then make that outcome unlikely.

Content and controversy

Twenty years after the music-file-trading service Napster alerted content providers to the ease and volume of copyright infringement activity online, internet users are still helping themselves to content they don’t own and paying thousands of dollars when they get caught.

And as the infringement continues, it has resulted in a “slow but steady” increase in the number of content owners, attorneys and paid services that look for violators and target them, says Mitch Stoltz, a staff attorney focusing on intellectual property at the Electronic Frontier Foundation, a nonprofit organization that advocates for free speech and privacy rights protections online.

Even posting a photo you don’t own on a social media site such as Facebook or Instagram can make you a target if your page promotes a business or if you are a recognizable brand. NBA star LeBron James and NFL quarterback DeShawn Watson learned this when they were sued for posting in-game images of themselves taken by freelance sports photographers on their own social media pages. Both athletes chose to settle the claims.

And in the new copyright frontier, photographers are suing companies who use their social media posts containing copyrighted content and embed them on websites – something that tech giants such as Facebook and Instagram make easy to do.

Either way, infringers pay

Most enforcement activity takes one of two forms, Stoltz says. “There are lawsuits trying to uphold people’s rights to their creative work, and there are suits basically trying to make money off of threats to litigate,” he said.

Which is which depends on the content owner and the law firms pursuing claims, he said. But one thing is certain: If you get a letter demanding payment to avoid litigation, you’re going to pay. You’ll either pay to avoid a lawsuit, or you’ll pay an attorney to defend yourself.

In U.S. District Court in South Florida, a handful of businesses have been showing up again and again as plaintiffs in copyright-infringement suits. One is Strike 3 Holdings, a Delaware-based company that sues people who use file-sharing sites to download adult movies. The company files suit against defendants based only on their IP addresses, then subpoenas internet service providers for the names of customers using those IP addresses.

Three are photography studios. Affordable Aerial Photography, which takes photos of high-end South Florida homes for real estate listings, has filed 134 lawsuits since 2014, including 89 in the Southern District of Florida dating to 2020. Its targets are mostly real estate agencies but include insurers, a wealth management group, resorts and web-design firms.

Another is Prepared Food Photos, a Lake Worth company that sells subscriptions for access to hundreds of stock photos of popular restaurant-style dishes, meats, seafood and produce.

The studio has sued 58 businesses, including 22 in South Florida ranging from produce wholesalers, meat suppliers, food delivery services and small restaurants.

Blaine Harrington, a Denver-based travel photographer with more than 45 years of experience working for national magazines, book publishers, nonprofits and large corporations, has filed more than 100 infringement suits since 2017, including 21 in South Florida against a variety of defendants, including hotels, travel agencies, yacht brokers, tourist attractions, and even Monroe County over a photo taken in the Florida Keys.

Attorney: Creators deserve to be paid

Daniel DeSouza, a Coral Springs-based attorney and partner in the firm CopyCat Legal PLLC that represents the three photography businesses, says his clients deserve to be compensated for commercial use of their work. Failure to protect their content, he says, could lead future infringers to claim that the creator must not care if their work is used for free.

“If you have an aggressive client, often they will be called a copyright troll and too overly aggressive,” he said. “Taking the opposite approach can be construed as allowing infringement. I’ve had too many suits where the defense is, ‘This person didn’t protect his copyright.’”

Harrington has taken 500,000 images in over 80 countries and about 50,000 are posted on his website, he says. Because he has disabled the ability to directly download his images from his website, infringers can only obtain them by taking low-resolution screenshots or finding them on other websites.

Harrington’s website is plastered with copyright notices. One says that no photos on the site “are within the public domain.”

And yet a reverse image search of one of Harrington’s photos – a pastoral view of a road winding through Kentucky horse country – turns up 624 uses across 16 pages of Google search results.

On the Wikimedia Commons site, where creators post images for royalty-free use, the photo is credited as owned by someone else and labeled as freely available for any use. Users who rely on that assurance risk an infringement suit.

DeSouza says prolific content providers such as Harrington must rely on third parties, including law firms that practice copyright infringement law, to protect their rights. “He has 500,000 photos,” DeSouza said. “It would take this guy 85 years to track all infringements.”

In an interview, Harrington said he has been portrayed by opposing attorneys as a copyright troll “who puts this material out on the internet solely for the purpose of hooking infringers.”

He takes issue with such accusations, as a sought-after professional who has been shooting high-quality photographs since the 1970s for magazines such as Time, Forbes, National Geographic and many others.

In addition to nearly five decades of experience, he has invested about $100,000 in camera equipment, computers, monitors, hard drives, software and a drone. Then there are outlays for travel, hotels, renting helicopters or hot air balloons, and liability insurance.

“This is my point of view,” he said. “I took these pictures and I deserve to be paid. I don’t have a lot of sympathy for people who can’t be bothered to find out how to license a photo.”

Some content creators pay companies, such as TinEye, to constantly search the internet for infringing uses. There are also law firms that perform searches, though DeSouza says his firm is not among them and relies on creators to alert the firm to potential claims.

And there are content owners who pursue claims more aggressively than others, DeSouza says. Most law firms take copyright infringement cases on contingency – meaning they only get paid when they win in court or convince targets to settle, because content owners typically can’t afford to pay lawyers’ hourly fees upfront, he says.

That results-dependent arrangement is why targeted infringers almost always end up paying something. For every lawsuit that’s actually filed, there’s an untold number of targets who pay up to make the threat go away, Stoltz said.

Typically, content owners resort to lawsuits when accused infringers ignore their initial communications, DeSouza and Harrington said.

“You reach a point in negotiations in trying to obtain a settlement that the infringer either is not acknowledging the case or is not being serious about trying to resolve the matter,” Harrington said. Then “it becomes necessary to file suit. In the majority of these cases, if not all of them, this has led to settlements.”

For Realtors, it’s complicated

Most targets of Affordable Aerial Photography’s efforts are Realtors who should know better, DeSouza says.

BeachesMLS, the listing service for Realtors in Broward, Palm Beach and St. Lucie counties, states on its website that users must obtain written consent of the owners of any intellectual property, including photos from the widely circulated Multiple Listing Service, before using them in their own materials or websites.

Marla Martin, spokeswoman for the statewide trade organization Florida Realtors, said attorneys for the organization share advice in articles posted on floridarealtors.org.

But figuring out what’s legal can be complicated for Realtors, says Griffin C. Klema, a Tampa-area attorney who defends targets of lawsuits and demand letters by DeSouza’s clients and others.

For example, a commonly used website plug-in enables Realtors to display photos and descriptions on their websites that other Realtors have uploaded to the MLS. Realtors who embed the MLS feed on their websites via the plug-in are held blameless for infringing content uploaded by others as long as they post language known as the “safe harbor” provision of the Digital Millennium Copyright Act.

The safe harbor language must state that the website operator does not have actual knowledge of infringing content, receives no direct financial benefit from the infringing content, has registered an agent designated with the U.S. Copyright Office to receive complaints, and takes prompt action to remove infringing content when notified.

Some Realtors are under the impression that they are also protected if they copy-and-paste photos directly from the MLS feed onto their own sites, Klema said. That’s not necessarily the case. Rights differ depending on the MLS (there are nearly 600 nationwide) and what’s stated in contracts between the photographers and agents that hire them, he said.

Professional photographers typically retain ownership of everything they shoot for clients, DeSouza says, and clients license them for specific, limited uses. Anyone else who wants to use a particular photo is responsible for tracking down the photographer and obtaining their own license.

They should know better but do it anyway

Infringers fall into different categories, the attorneys said.

Some – “like the son of the owners of a small restaurant who finds a food photo online and publishes it on a website they’re updating for mom and dad” – are used to sharing images and memes and think they have a right to use whatever turns up in a Google image search, DeSouza said.

Realtors and website designers, he says, are in the category of infringers who should know better but do it anyway.

Surprisingly, he says, lawyers themselves are among those who know – or should have known – better.

“If you click on a law firm website and see a picture of a banana peel, caution tape or a ‘caution wet floor’ sign, I’d bet you would see those same photos hundreds of times across the web.” He said he doesn’t know why lawyers tend to be copyright infringers. “Maybe they think, ‘No one is going to find out, so why not?’”

They’re not going away

Experts urge those who receive demand letters to address the matter right away, by negotiating a settlement with the rights owner or hiring an attorney to determine the most prudent path forward. The worst thing people do is ignore letters, emails or phone calls.

The claims are not going away, and the price to settle will only escalate if ignored, Florida Realtor warned in a 2014 story in its trade magazine.

Defendants who fail to respond to federal lawsuits can find themselves on the losing end of default judgments that typically cost $50,000, DeSouza said.

Klema urges targets to hire a defense attorney as soon as possible. They know how to minimize damages or possibly even beat infringement charges, he said. One strategy involves convincing a judge that a claim should be settled for “actual damages,” “statutory damages” or profits of the infringer, he said.

Typically, attorneys for content owners will automatically seek statutory damages, which are set by federal law at $750 to $30,000 per infringement if found not to be willful, and up to $150,000 if willful. To be entitled to statutory damages, the content owner must prove that the infringement was committed after the work was registered with the U.S. Copyright Office.

If the work wasn’t registered before the infringement, attorneys fees cannot be awarded and owners are limited to seeking “actual damages.” As the term implies, that refers to the actual amount of money the content owner lost when the infringer failed to hire them or license their work.

This can be much less, particularly if the defendant can prove that the damages should equal the content owner’s lost revenue. Profits that the infringer made by using the copyrighted work can also be awarded if they exceed the actual damages.

Some fight back

John Abdelsayed says he decided to fight the claim leveled against him by Affordable Aerial Photography not only because he cannot afford to pay its $30,000 demand but also because “I don’t believe I owe it to them.”

“I don’t believe I took anyone’s photo. Anything I’ve done, I did with a license,” he said.

Klema has responded to the Affordable Aerial Photography’s claim with a number of defenses, including by proving that the studio is not entitled to statutory damages and attorneys’ fees because it did not register the photo with the U.S. Copyright Office before Abdelsayed posted it on his site.

Now the dispute is focused on whether the photo that Abdelsayed used is covered by the registration at all. The photo he downloaded from the MLS site, the two sides agree, was an edited version of the original registered one.

The photographer changed it by adding five bougainvilleas, adjusting the tilt and cropping the image. He’s arguing that the “derivative” work is covered by the same registration but DeSouza acknowledged his client could lose the case if the judge does not agree.

Klema and Abdelsayed hope the judge will rule in their favor, and if not, limit any award to an amount that’s “very, very small,” Klema said.

DeSouza says it’s rare for an infringement case to advance so far. The vast majority of potential defendants agree to settle before any lawsuit is filed.

Embedding may be endangered

One way that websites have been able to display copyrighted content they are not licensed to use while avoiding infringement claims is by embedding photographers’ social media posts with the content onto their sites, said Stoltz, of the Electronic Frontier Foundation.

Social media platforms like Facebook, Twitter and Instagram encourage such usage by providing embed codes, and the website owners rely on a 2007 California federal court ruling that embedded posts do not violate copyrights because their content is stored on the social media platforms.

But a handful of content owners are challenging these uses, arguing that websites, including news site publishers, are infringing when they fail to license content in embedded posts.

A 2018 ruling in the Southern District of New York affirmed a photographer’s claim that Breitbart News violated its copyright by embedding a Twitter post with the photographer’s image of quarterback Tom Brady. Several media companies have since reached settlements with the photographer.

And in California, a pair of photographers are appealing a 2021 federal judge’s dismissal of their claim that third-party websites violate their copyrights – and that Instagram is liable for secondary infringement – when embedding Instagram posts displaying their photos and videos.

They claim that the 2007 ruling holding website owners harmless for embedded posts with copyrighted content is now “outmoded and impractical,” according to the website PetaPixel.

Electronic Frontier Foundation believes that the photographers’ argument “is not what the law should be,” Stoltz said, adding, “but some courts feel otherwise.”

New case law requiring website owners to license images in embedded social media posts could dramatically alter options available to traditional news sites and untold numbers of sites that post stories stringing together Tweets, TikTok videos and posts from Instagram and Facebook.

“Embedding is the new legal frontier,” Stoltz said.

© 2022 South Florida Sun-Sentinel. Distributed by Tribune Content Agency, LLC. Ron Hurtibise covers business and consumer issues for the South Florida Sun Sentinel.