“How Business Owners Can Avoid Copyright Infringement” with Tom McNulty of Lando & Anastasi

Jonathan (1s):
Welcome back Radio Entrepreneurs. I’m Jonathan Freedman and our next guest up Tom McNulty, of Lando & Anastasi welcome to Radio Entrepreneurs.

Tom (8s):
Thank you for having me once again,

Jonathan (10s):
I always feel like I got a welcome your Tom, you know, see one another on a regular basis. It’s always great to have you on the show.

Tom (16s):
Yeah, thank you. This it’s a, it’s a good time.

Jonathan (19s):
So you want to talk about something that I think is probably all too common today and something that many people are probably doing unwittingly. Let’s just assume that’s the case. You want to talk about copyright infringement and utilizing images and other types of things that people have a lot of collect off the, off the internet.

Tom (36s):
Yeah, there’s been sort of an explosion of cases relating to this typical scenario is somebody setting up a website. They want to, you know, decorate the background with images related to whatever it is. They’re, you know, whatever goods or services they’re selling. Sometimes you see it come up in the context of, you know, people sharing, you know, Instagram pictures or Facebook posts, things like that. So it’s kind of, you know, websites and social media is sort of the area for it. And they will go online and find an image that looks like, you know, it might be something nice in the background or something nice to illustrate something and just, you don’t copy and paste it onto their website or through their social media without really thinking about any of the intellectual property rights that go with it.

Tom (1m 24s):
You know, sometimes it’s the individual businessmen themselves. Sometimes they’ve hired a web designer or a social media, you know, company to do this for them.

Jonathan (1m 34s):
And it’s not the case where that image needs to have any sort of watermark that indicates that it’s a proprietary of any sort. This is, this is just any image that you find.

Tom (1m 43s):
Yeah, absolutely. There’s, there’s somewhat of a misconception that if there’s not a, you know, the circle C or some kind of watermark or some kind of identifying information that it’s, it’s free for the taking, and that’s just not the case under us, copyright law, the copyright vest to the photographer, you know, whoever, whoever took the image, as soon as it’s fixed in a tangible medium, there’s no requirement anymore that, that it’d be marked with a Copyright signal or anything like that. So, so basically everything you see on the internet, somebody has Copyright rights in, you know, whether they will choose to enforce or not as a different question, but somebody somebody’s got rights to, to everything that’s on the enter.

Jonathan (2m 24s):
Where are you seeing the explosion in cases? Are they, are there cases where in, because you know, again, it would seem to me that obviously, you know, if a company has a legal department that is protecting their, their, their properties and, or, you know, somebody that’s looking out for that, it would make sense. But if it seemed to me that most photographers that are putting their images out there are probably don’t have the resources and the means to track who’s copying and pasting, especially if it’s not protected in some sort of way.

Tom (2m 54s):
Well, I mean, that’s sort of the interesting thing. There’s, I think there’s two things that are driving this. The first is there’s been considerable improvement in image recognition, software, and there’s software. Now that basically you can, you can plug in your pictures and it’ll come the internet and look for Infringement, look for copies. So that’s been, that’s, you know, the technology behind that is, has dramatically improved over the last four or five years. And then the second factor that seems to be driving it, at least, you know, based on what I have seen is there’s a number of litigation firms that have opened up basically solely to pursue this. So they, they have the software, they hire a bunch of photographers, upload their images and, and call the internet, looking for Infringement, oftentimes they’ll file suit without the photographer, actually being aware that an infringement was about, which is sort of questionable from a legal ethics standpoint.

Jonathan (3m 53s):
Would that be the equivalent of ambulance chasing?

Tom (3m 57s):
I mean, I do want to say up front that I’m going to be critical of some of these practices, but I do want to say up front that, you know, if you are taking a picture off the internet and putting it on your website, that is copper in Infringement, you should be doing it. So, you know, whether you like these people coming after you or not, and think that they’re doing ethically or not, it’s, it is something that you’ve kind of put yourself in the position to have to deal with.

Jonathan (4m 21s):
And I want to be clear, it’s not just publishing, publishing the image, it’s utilizing the image in any fashion or, or, or not. So, So if, if I was to use it as a screensaver, you know, for my own usage, as opposed to broadcasting it or publishing it in any way,

Tom (4m 40s):
Is that a gray area? Yeah. Strictly speaking, you can’t download it and use it as your screensaver, but I don’t think they’re going to be able to find that it’s, it’s, it’s more when you put it on the internet yourself. So, like I say, a lot of times it’s, it’s, you know, you see a lot of like hotels and travel agencies that will take pictures of, you know, locations nearby as, as part of their pitch to use their services. So that that’s sort of a scenario where you’re actually trying to not necessarily profit off the photo itself. You’re not selling copies of the photograph or something like that, but it’s really more geared towards like a sales pitch, but you also see it sometimes, you know, I had a client that he was building a new website and he just wanted some general kind of background pictures of the technology who is working in not necessarily his products, not necessarily anything he was pitching, just sort of the, you know, the sort of basic stuff to be the background for his website.

Tom (5m 33s):
And, you know, he had somebody come after him because they took a picture that was on the internet and copyrighted and, and, you know, use that as their background. The thing that makes this sort of scary, you know, if you’re somebody that gets, you know, gets, it gets a notice or gets sued on this is copyright law. And like most unlike most, you know, litigation matters in United States has a fee shifting provision where the prevailing party can be awarded their costs and the reasonable attorney’s fees. So even if you think that the Infringement is sort of the minimus, and there’s not a lot of, you know, damages to be had, there’s this threat of attorney’s fees hanging over your head, which can escalate rapidly as they can.

Tom (6m 20s):
And the other part of it is there’s actually a statutory damages provision where if, if you can’t quantify specifically what your damages are, or if it’s, frankly just seems like it’s gonna work out better under the statutory provision, you can get statutory damages anywhere in the range of 750 to $30,000 per Infringement. If the court determines that you willfully infringed, that you sort of knew what you were doing and went ahead and did it anyways, they can increase the amounts up to 150,000 per Infringement. So a lot of times, you know, particularly from some of the perhaps less scrupulous cabaret attorneys out there, you’ll find out that somebody thinks you’ve used their image by receiving a lawsuit and the demand for $30,000, you know, which, which, you know, it’s a big deal for people, particularly for, you know, a lot of these images you can get on, you know, we get images or any of that, any of the stock image companies.

Jonathan (7m 21s):
It seems to me that the cost of the image at a couple of hundred bucks is a far better investment than running that.

Tom (7m 27s):
Yeah. Yeah. So I know there’s, there’s, you know, people get these complaints and they feel a lot of pressure to settle into, you know, offer big chunks of money. So that’s one of the things I kind of really wanted to go into here is despite the fact that there is attorney’s fees available in statutory damages available, don’t necessarily assume that there’s going to be a big payday for the other side, when they come after you, there are some, some limitations on how much it can be awarded. And when courts will award that, I think it’s important to bear in mind, statutory damages, excuse me, were never intended to be kind of a windfall for the copyright holder. They are supposed to have some reasonable tie to the measure of damages that the, that the photographer would have suffered.

Tom (8m 13s):
You know, so, so, like I say, if there’s images that are available on a, on a stock image site for a couple of hundred bucks, you know, the courts will probably take into account that need for deterrents, and they’ll probably up it from there, but they’re not going to have 30,000. It might be in the, you know, high hundreds to a thousand dollars range for something like that. Assuming you’re not, you know, a willful or repeat infringer or something like that. And the same thing with attorney’s fees while they can award reasonable attorney’s fees, the sort of reasonable part, it has to be somewhat tied to the amount of damages that could reasonably be expected. So if somebody claims that they’ve rung up $50,000 drafting a complaint for a, you know, what might be a $500 award, they’re not going to get 50,000 from court.

Jonathan (8m 57s):
So it sounds to me like the, the, the message here is that there’s, there’s good news in that if you are accused of, or guilty of, let’s just say accused of copyright infringement, that perhaps the penalties aren’t as severe as some, some, you know, attorneys may make it out to be, they’re likely to be one-sided. You can, you can mitigate all that by going out and spending a couple of hundred bucks and just paying for the images that you you’re going to utilize and publish.

Tom (9m 25s):
Yeah, absolutely. Absolutely. There is one of the thing that sort of comes into play with all this there’s a separate statute that makes it a civil tort to remove Copyright management information. So for example, if somebody has got a watermark or a copyright insignia or identification of like, you know, the photographer, gutter credit, that kind of thing, if you remove that and then republish the photograph without it, that is a separate violation, excuse me, that also comes with possibility for actual or statutory damages. In this case, statutory damages run from 2,500 to 25,000 per removal that can be tripled. If you’re a repeat offender, a repeat offender is kind of defined as having been found to have violated the statute.

Tom (10m 12s):
Within three years of previously, haven’t been found to violate the statute.

Jonathan (10m 18s):
It would seem to me it would be difficult to prove that that was not willful. I, and if you’re actively remove a watermark,

Tom (10m 24s):
Well, there’s sort of, there’s some interesting examples of when it’s not willful. There was a case of a company that was posting pictures of houses to the MLS listings and, you know, for real estate sales. And the way it worked was the picture was reduced to a thumbnail and put on the MLS listing as a thumbnail and the sort of technical process of reducing it to a thumbnail, which was, you know, automated. It wasn’t like somebody who was making this decision just so happened to, to crop out the gutter driven. And that was a case where that was found not to be willful. So, you know, if you do get accused of that, and again, don’t do this, I’m not getting anybody into this because they think they’re going to get off.

Tom (11m 3s):
But if you did get accused of something like that, you know, there may be some, some ways around it or some ways, you know, some, some defenses, I shouldn’t say, but some defenses that can work in your favor, you know, so these are all sorts of things to bear in mind. If somebody comes at you with something like this, there’s also the possibility and the Copyright side of a fair use defense. There are instances where corporate law permits you to go ahead and actually copy somebody’s work without a license and without payment, the fair use kind of things are, you know, it’s typically news reporting, scholarship teaching, that sort of thing is that

Jonathan (11m 44s):
Historically without of public domain, you know, once it’s out there and it’s, and it’s, you know, sort of access or is that that’s different, that’s, that’s things like happy birthday,

Tom (11m 56s):
Well, happy birthday. It was kind of a contested issue for quite awhile. Public domain is when things, when the Copyright has lapsed copyright law, at least theoretically, doesn’t go on forever. They keep, they keep extending it to every time the Disney stuff comes close to God, I’ve got to be the driving force. You know, like, like, like, you know, 18 hundreds, classical music compositions. The music itself is not subject to copyright at this point. You know, if you’ve got a, if you’ve got a recent, you know, recording say on the Boston symphony orchestra doing it, the recording is going to be subject to copyright, but the underlying piece of music is not fair. Use applies to stuff that is still subject to copyright.

Tom (12m 41s):
So, you know, that, that’s the kind of, there’s a, there’s a recent case that involves somebody publishing. It was a Cardi B Instagram post. I think it was that the underlying photograph of Cardi B herself was taken by a photographer who claimed copyright protection. And it, and somebody had had published the, the Cardi B post as part of a new story about what Cardi B was doing. And the fact that she published the post and the contents of the, of the posts were kind of part of the newsworthy angle of it. And that was found to be a fair use.

Jonathan (13m 13s):
Interesting. So a as always Tom taking some, some stuff that seems to the lay person to be pretty straightforward and, you know, putting some context around it always very valuable for our listeners, I think. And if people want to talk to you about whether it’s copyright infringement, whether they have an idea, whether they’ve been contacted by somebody, who’s indicated that they’ve violated their copyrights, what’s the best way for people to reach out to you. And can you assist in all those matters?

Tom (13m 40s):
I certainly would be willing to look at any of those matters. Yes. The best way to reach out to me, you can find me on, on our firm website, we’ll plan to do an Anasazi it’s www.la law.com. And, and you can get me at my, my phone number (617) 395-7040.

Jonathan (13m 58s):
Excellent. Tom McNulty of Lando. And Anastasi always great to have you on Always, this is a great to hear your insights into everyday practices that people might take for granted and should be watchful. And where are you? So always great to have you on Radio Entrepreneurs.

Tom (14m 13s):
Thank you. It’s been a pleasure

Jonathan (14m 15s):
And we’ll be right back with another segment on Radio Entrepreneurs.