The days of free use of internet sourced photo content may soon be at an end.
For years websites, online posts and online content have been embellished with photos easily accessed and downloaded from online searches with impunity and without the inconvenience of having to pay a licence fee to the copyright owners of the material.
But the copyright holders have had enough and are fighting back. In short, if you have used free online content you may soon get a demand to pay up.
Developments in technology, especially AI, means copyright owners of content, and in particular photos, are able to do extensive sweeps of internet websites to identify copyrighted material which has not been licenced, track down the owners of the offending websites and contact them demanding payment for the unauthorised use. And the sweeps go back many years and are picking up websites long unused be nonetheless still accessible.
The large image copyright owners such as Associated Press, Reuters, and Agence France-Presse have contracted third party agents to collect licence fees for alleged copyright infringement. The largest agent is PicRights who has an Australian presence. Others include Higbee and Finnerty Osterreicher.
In 2024 thousands of emails were sent out by the copyright owners’ agents to unsuspecting website owners alleging copyright infringement and demanding payment of a nominated fee to resolve the alleged unauthorised use of the identified image/s. The emails include a copy of the images. Payment is directed to a nominated Swiss bank account.
Given the heightened awareness of online scams most recipients will be very wary of sending money to a foreign bank account solely in response to an email from an unknown source. However, a failure to respond generates a further email this time threatening escalation to lawyers, the withdrawal of the licence fee “offer” and the threat that a future settlement will include additional costs.
This is then followed by a letter from one of the large City law firms threatening litigation including seeking an injunction, damages and additional damages (i.e. punitive damages) and costs unless payment is made of an amount stated to represent compensation calculated to what a licence fee would have been for use of the image taking into account the size and resolution of the image, the location of the image on the website, the duration of usage and the costs of the law firm having to respond to the alleged infringing conduct. The amount demanded is usually much greater than the original demand.
If you are a recipient of such a demand you will have few options. Simply removing the offending image does not extinguish a breach of copyright claim. If you sourced an image from the internet and used it to illustrate your website without a licence the fair dealing or fair use defence provided in the Copyright Act will not apply. Similarly, ignorance of the need to acquire a licence or having relied on a third party to build your website or arguing you made no money from the use of an image will not get you off the hook. Even if you bought an image as part of a design template, if an image is copyrighted you will be at risk if you do not obtain a licence for its use.
While the Internet is all pervasive, times are changing and copyright owners are fighting back against unauthorised use of intellectual property, especially photos. The lesson is to get a licence. If you can’t determine who is the copyright owner don’t use an image. Far better to purchase a licence from a reputable licensee. In the long run it will be cheaper and avoid the risk of having to deal with lawyers.
