When it says “free”, that means its free, right? No, this is often not so on the internet, and often not so for photographs or other images. Even if you find a photo on a “free” website you have no idea if the operators of the site have the right, i.e., the copyright, to offer the photo to you at all, let alone for free.
So what can happen if, as a small business owner with little money, you use a “free” photo or two on your website? What we have seen a few times here is that after a while you get caught by an automated piece of software used by photo warehouse companies such as Getty Images, Masterfile, and others. The automated software combs internet websites to find matches to the photographs owned by or licensed to the photo warehouse company. Once a match is made to an image on your website, then what happens is that you as the owner of the website are sent a demand letter demanding a relatively large (large to you) sum of money. We have seen demands in the thousands and tens of thousands of dollars over the use of as little as a single image.
The demand for money may be in the form of retroactive license payments to the photo warehouse company, who rely on what are called statutory damages under the copyright laws. People who get caught call it extortion. See for example www.extortionletterinfo.com.
Statutory damages are automatic penalties without the photo warehouse company having to prove ordinary damages (lost revenue, for example). They are automatic for each act of copyright infringement, and the lawyers for the photo warehouse company are very quick with their calculators to add up multiple acts of infringement. Statutory damages are awarded by the Court on a monetary scale, from low to high, to give the Court flexibility in the lawsuits that they see. Not surprisingly, the lawyers for the photo warehouse company use the high end of the scale to show you how much you might have to pay if and when they actually sue you.
And they do sue people for copyright infringement! So it is not an empty threat. The cost of settling with them tends to go up if you don’t settle right away and they have to go to the expense of litigation. Keep in mind, as the photo warehouse company knows, that if you get sued you will likely have to pay for lawyers to defend yourself. The photo warehouse company does too, but they have a system in place. You don’t. You likely don’t even have a very good defense, if one at all. Innocent infringement isn’t a defense – it is still copyright infringement if you are using someone else’s photo or art or other image without permission, albeit innocently. Your best defense is not to do it, or to remove questionable photos or other images before you get caught and hope the photo searching software leaves you alone for your past infringement. However, the limitation period (three years in Canada) allows the photo warehouse company to come after you retroactively; that is, for your past infringement! If you have employed a website designer, make sure that the designer puts in writing on his or her guarantee that all the photos or images used are owned by the designer and are licensed to you for your use, and properly licensed to the designer from the original source of the photos. This will give you recourse, or a way to get repaid when and if you are caught and penalized.
The moral is: don’t use “free” photos or images from the internet on your own website. Don’t be lazy. Take photos yourself, or use the photos taken by a friend (with the friend’s written permission, of course).