Is an image on your practice’s website a potential liability?
By Paul J. Welk, PT, JD*
It is an uncomfortable feeling for anyone to be checking the day’s mail and notice a letter from a law firm with which the recipient has no prior relationship.
While such letters can cover a variety of topics, with apparent increasing frequency in the private practice physical therapy setting, these letters contain an allegation that the practice is using an image owned by a third party, and protected under copyright laws, on the practice’s website or other media without the legal right to do so. These letters are part of an effort by copyright owners to protect their intellectual property by utilizing law firms and other agencies to pursue apparent violations. In brief summary, these letters identify the copyright owner, explain the damages that the copyright owner may seek against the practice, and offer to settle potential claims for a specified dollar amount if the payment is received in a timely manner. The payment may or may not provide the practice with a license to use the image on a going forward basis. This article will summarize the very basics of copyright relative to images, address some common misconceptions about copyright law, and provide options that can be considered to mitigate the risk of a copyright infringement claim.
As a starting point, copyright is a protection provided for under United States law to the authors of original works of authorship fixed in any tangible medium of expression, which includes photos and other graphic or symbolic media. Under U.S. copyright law, the owner of the copyright has he exclusive right to reproduce and publicly display the work. If the rights of the copyright owner are violated and the owner prevails in an infringement action, the owner may be entitled to a variety of remedies, including monetary damages.1 When considering using an image, while there are certain characteristics that may result in an image not being copyrighted, it is best to assume that an image is protected under copyright law, and therefore there must be justification before the image can be used.
In terms of misunderstandings and misconceptions regarding copyright as it relates to images, there are many. Initially, when it comes to determining whether a copyright infringement has occurred, “I did not know it was copyrighted” is not a defense. Even if the image was used inadvertently, an unauthorized use still supports a claim of copyright infringement. Another false assumption is that an image located on the internet is in the “public domain” and therefore can be used freely without permission of the copyright owner. This is not the case, as the term “public domain” is a term of art under copyright law and does not mean that because an image is generally available to the public it can be freely reproduced. Additionally, copyright protection happens automatically upon the creation of the original image, and there is no requirement that a copyright be registered to be valid; however, note that if a copyright holder wishes to pursue litigation based on a claim of copyright infringement or have the ability to receive statutory damages, the copyright must first be registered. Finally, there is not a requirement that a copyright notice be included for the owner to have appropriate protections. Unfortunately, the fact that the user of an image thought one or more of these misconceptions were accurate does not carry great weight in defending a copyright infringement claim.
From a risk mitigation standpoint, there are multiple ways that a practice can reduce its exposure to a claim of copyright infringement. Initially, it is beneficial to perform a review of the practice’s website and other marketing material to inventory what images are currently being used and determine how the practice has secured the rights to each image. In terms of a source for images, many images appropriate for a physical therapy practice website can be purchased through stock photography websites. As another option, the practice may choose to create its own images: for example, by taking photos with a smartphone. If the practice elects to use its own images, it should be cognizant of the rights of any patients or other individuals who may be included in those pictures. For example, including a patient in an image could result in a HIPAA violation if appropriate steps are not taken. The practice should also be aware that when an image is provided by an employee or other third party, the practice must secure the rights to the image; for example, through a license agreement or by assuring that the image qualifies as a “work made for hire” under copyright law. This is necessary because the copyright owner of an image is the person who takes the photo.2
Having to make a payment to settle a copyright infringement claim for use of an image is a painful experience, in part because often the same or a similar image could have been lawfully utilized at a significantly lesser cost by performing appropriate due diligence and securing the legal right to the image. Additionally, the result of the settlement is often an obligation to discontinue the use of the image. I hope that by reading this article readers will better understand the rights of copyright holders, avoid the misconceptions that may lead to liability for infringement, and be better able to take appropriate steps to mitigate the risk of receiving an attorney letter alleging copyright infringement.
1See Copyright Basics, available at www.uspto.gov/learning-and-resources/ip-policy/copyright/copyright-basics. Accessed April 29, 2019.
2See Copyright Registration of Photographs, available at www.copyright.gov/circs/circ42.pdf. Accessed April 29, 2019.
Paul J. Welk, PT, JD, is a Private Practice Section member and an attorney with Tucker Arensberg, P.C. where he frequently advises physical therapy private practices in the areas of corporate and healthcare law. Questions and comments can be directed to firstname.lastname@example.org or (412) 594-5536.
*Please note that this article is not intended to, and does not, serve as legal advice to the reader but is for general information purposes only.
*This author has a professional affiliation with this subject.