Last month a New York photographer sued Arkansas Times Inc. alleging the Little Rock media company used a photo he had taken on one of its websites without permission. It was the latest copyright infringement suit filed over claims of unauthorized use of photographs.
Intellectual property attorney Adam Hopkins of the Rose Law Firm’s Fayetteville office, has noted a rise of the cases, which can be costly to companies.
Copyright infringement damages typically total from $750 to $30,000, but if copyright owners prove the infringement was willful, statutory damages can reach $150,000 per work infringed.
In recent years, software developers have made it easier for photographers or image copyright holders to upload their pictures into a program and scan the internet for possible misuse of their photographs. “That has really lowered the cost for investigating copyright infringement,” said Hopkins, a graduate of the University of Arkansas School of Law.
He said the cases he sees aren’t limited to media companies, either, as rights holders cast a wide net. “Some local business owners, like fishing guides, for example, who happen to have small websites have been sued because their websites allegedly included images of these copyrighted fish,” Hopkins said.
Arkansas Times Case
Dennis Clark, a New York photographer, sued last month in U.S. District Court in Little Rock, alleging that his copyrighted photo of a health care worker taken in March 2020 appeared on ellatinoarkansas.com, Arkansas Times’ website for El Latino, the weekly Spanish newspaper that covers central Arkansas.
Clark alleged the image was taken from an article on the New York Post’s website, “which contained a photograph credit,” according to the suit filed by attorney Craig Sanders of Garden City, New York. But when the photo was on El Latino’s website, no photo credit appeared. El Latino Publisher Alan Leveritt said his editor got the photo “off the internet” and that there was “no copyright indication on the photograph.”
“He thought it was in the public domain,” Leveritt said, adding that he’s turned the case over to his lawyers.
Clark’s copyright infringement suit said widespread misuse of the photo could undercut the potential market for it. He is seeking $150,000 in damages, plus court costs and attorney’s fees, in addition to up to $25,000 in damages for the removal of copyright management information from the photo.
Sanders didn’t immediately return a call for comment.
Know What’s There
Hopkins suggests companies stay aware of what’s on their websites and social media pages. And if a company hasn’t done an inventory of web content, they should delay no longer.
“Check to see whether you have the proper permission to use every image, because you should assume by default that every image is copyright-protected,” Hopkins said. “And that includes images that you have put there a long time ago.”
He said that as long as those images are on the website, “that’s a continuing violation. And so the statute of limitations would not run out as long as they’re continued to be posted.”
Mitch Bettis, owner of Arkansas Business Publishing Group Inc. of Little Rock and this newspaper’s publisher, said his company conducted an inventory last year, removing hundreds of images going back 15 years whose copyright or origin couldn’t be documented.
Leveritt said he didn’t know about the claim until his company was served with a lawsuit. In most cases, the targeted company gets a demand letter before a suit is filed. The company should then consult an intellectual property attorney, Hopkins said. “Sometimes liability isn’t nearly as clear as the demand letter would indicate,” he said. Often, he added, a “settlement can be negotiated for much lower than what’s demanded.”
When companies or people are informed that they are violating someone’s copyright by using their image without permission, a common response is “Oh, I’m not making any money off this,” said Luc Boulet, government affairs manager at Professional Photographers of America, a trade group that represents more than 31,000 photographers.
Nevertheless, he said, companies are benefiting and photographers aren’t being paid for their work. “One licensing fee or two licensing fees may not make a difference, but the infringements are happening hundreds of times a day,” Boulet said. “Those figures do add up.”
Copyright infringement is a digital theft, he said. “If copyright was respected in the same way as other thefts, then there would be a precipitous drop in infringement,” Boulet said, “because there will be a climate of respecting copyright.”