When you open the newspaper in the morning,you see at least a couple of news articles about copyright infringement by famous brands. In most cases, what we think is original work, is sadly not. The internet is a great facilitator for free speech, information dissemination and for the industries. But, it is also a breeding ground for plagiarism and Intellectual property rights infringement and a lot of mud-slinging.
Copyright infringement is rampant and brands have to be extra cautious, as Intellectual property theft can affect the brand’s overall image and have serious financial implications. It is not just morally wrong but is also illegal. Copyright means, ‘the right to copy’. The owner of the copyright has the ultimate right to reproduce and disallows unauthorized reproduction, and or translation. The violation of copyright is called ‘copyright infringement’ which can be both criminal and a civil offence. And this applies not only to literary and musical works but also performances, computer programs and other ‘artistic’ works.
The Copyright Act of 1957 (amended in 2012) governs copyrights in India. The act says that the authors or creators of original, literary,dramatic and artistic works are the lawful owner of the copyright. And only the owner of the copyright has the ‘right’ to display, use or distribute. What constitutes as artistic expressions are paintings, sculptures, diagrams, architecture and quite importantly photographs. Photographs have been used by brands to reach out to customers for a long time.
To understand the impact of Photography on Reach and sales, take a look at the infographic here.
With the current adoption of the internet and social media, photography has become huge. And so has the risks involved. It might just be a ‘photograph’, but an infringement will cost the brands more. Therefore, all businesses that use photographs must be aware of the legalities involved. With this blog, we aim to bring to your notice how certain brands had in the past and the present gone down the sticky path of photograph infringement knowingly or unknowingly. Brands and copyright infringement is really a messy twosome.
INFRINGEMENT: COLLATERAL DAMAGE
Brands, this is for you. A copyright infringement can have a huge impact on your overall image. With the quick adoption of the internet and social media, it has become easy for the brands to talk to its consumers. It has given a great power to the brands to think of effective ways to make conversations, be it through photographs, videos or content. That being said, ‘with great power, comes great responsibility’ and brands have to be responsible with their resources. It is called intellectual property for a reason, as it is born out of somebody’s hard work. Some of the brands that have faced copyright infringement in the past have learned it the hard way. But, you can save yourself from all the trouble and costly court proceedings by getting the owner’s permission.
Jacobus Rentmeester a recipient of the World Press Photo of the year award, from Netherlands, sued the leader of sports goods manufacturing, Nike, over their iconic ‘Jumpman’ logo. The logo is owned by Nike for its merchandise promoted by MichealJordan. The Air Jordan logo shows the silhouette of Jordan making a dunk. On January 2015, Rentmeester filed a suit against Nike alleging copyright infringement over the use of the logo. The lawsuit claims that Nike in 1984 paid Rentmeester $150 for using the images temporarily. Mr. Rentmeester claims that Nike recreated a similar looking image incorporating the same elements, later that year. This case against the sports good manufacturing giant is noteworthy because the federal court in Oregon dismissed Rentmeester’s claims in 2015 saying “copyright does not prohibit ideas, and it protects only the expression of those ideas”. What it means is that Rentmeester expressed his idea of Jordan taking a gravity-defying dunk, but the logo does not show any similarities to the said picture. Even though, the case ruled in favor of Nike, fans, world-over were shocked because their favorite brand that stands for uniqueness and identity had to get caught in such embarrassing legal suits. Something is iconic and famous, only if it is original.
Let’s take another example from India.On Dhanteras, everything was hunky-dory when the Prime minister of India’s office wished the nation.Until, a U.S- based photographer, Bimal Nepal claimed that the image used in the post was not given any credits or duly acknowledged. Mr. Nepal, claims that the image used in the banner was uploaded by him to the image sharing site ‘Flickr’ in 2012. The photographer whose work has appeared in National Geographic magazine found his image shared without this consent by the PMO. The post went on to garner a whopping 40,000+ shares and 15000+ comments. Mr. Nepal went on to say that “One of my photographs has been used by one of my greatest heroes, a true leader Indian Prime Minister Narendra Modi in his Facebook page. I shot this photo in my dining room last year with the help of my daughter with the credits. My greatest question and concern is – there is no credit for the photographer?! What will happen so-called © copyright issue? He did not ask for the permission. Any suggestion’. This incident created a backlash as people started questioning, how the PMO can misuse copyrights. In the current digital age, it is paramount even for the head of the state to think about copyright infringement. As cases like these are not just embarrassing but also controversial and damaging.Who owns the copyright of Internet Images? Read it here.
When two giants, like AFP (Agence France Presse) and Getty images get into a copyright infringement suit, it is bound to be huge. Photographer Daniel Morel from Haiti took eight photographs showcasing the aftermath of the Haitian earthquake that happened in 2010 and posted some on Twitter. AFP ‘copied’ those images and gave it to the famous photo agency, Getty Images, who promptly distributed it, obviously without Morel’s consent. Morel sued AFP and Getty and all the other news agencies that used his image for copyright infringement. Following a long court battle, the jury concluded that AFP was liable and Getty was party to the infringement.The jury ruled that Getty and AFP had committed 16 violations of the Digital Millenium Copyright Act and awarded Morel $1.2 Million in statutory damages and $28,889 as infringing profits. Even though the organizations went for higher appeals, the courts concluded that it was ‘willful infringement on their part’. This case is noteworthy because it showcases the liability that an organization has under the copyright act.
Shereen Way an unsuspecting mother of a four-year-old posted a picture of her daughter wearing pink Crocs on her Instagram profile. She used #crocs to identify the brand, and the company pulled out her image from her Instagram handle and uploaded it onto their website under the UGC (User Generated Content) section. The company had not taken Ms. Way’s consent and she was not aware that her photo was up on their site until she was contacted her friends. By the time Crocs reached out to her the damage was done. This case led the way to the much debated, User-generated content Infringement. Brands have to understand that there is a very thin line between engagement and infringement.
Cases like these are rampant. Brands have to be aware of the serious implications that these kinds of cases cause to their image and value in the minds of the consumers. Even Internet memes that are much-loved and shared on social media can be serious infringement. The famous case of TheOatmeal.com Vs Funnyjunk.com can be another great example. Examples for this are plenty, but the catch is, brands can’t afford to be examples and lose the trust that consumers have on them.
The internet certainly has changed the way the world looks at the photographs. And with that, we have several options for brands to ensure that they have high-quality images that are legally okay to use. At PhotoConcierge, brands can find several images that are royalty free and can be freely used for marketing. Brands can even use the Photo Request feature to get images exactly like they want.
The digital marketing space is quite dynamic, but there are certain rules that brands ought to follow. There are many ways to get creative, but never at the expense of other’s hard work. To stay safe, respect copyright laws governing your country. Afterall, digital rights matter.