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Don’t Feed the (Copyright) Trolls: A Five-Point Guide

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If you provide a complex product or service to customers, you know that sometimes a picture is worth a thousand words. For example, financial advisors must explain arcane financial concepts to people who haven’t studied personal finance or math in decades. No matter how they explain something, many people simply won’t get it. But one graphic chart or napkin diagram (pick your poison) can instantly make things clear to even the most math-phobic consumer.

This explains why advisors do a lot of PowerPoint presentations and why many publish blogs that pair content with images to provide financial education to their clients. And therein lurks the problem.

Since advisors are financial professionals, not graphic designers or photographers, they often rely on Google to surface images for their websites and blogs. They just plug a search term into Google Image Search and bingo . . . out pops hundreds (if not thousands) of images illustrating the concept. They pick one they like, save it to their computer, and then look more closely at it in Photoshop. If it lacks a copyright, they figure it’s OK to use. The sound you hear is a copyright troll licking his chops in anticipation of a big infringement payday.

Welcome to the annoying new Internet world where making copyright trolls go away can cost hundreds and even thousands of dollars.  According to Wikipedia, a copyright troll is “a pejorative term for a party that enforces copyrights it owns for purposes of making money through litigation, in a manner considered unduly aggressive or opportunistic, generally without producing or licensing the works it owns for paid distribution.”

The problem with this practice, legal experts say, is it doesn’t encourage the production of creative works. Instead, it’s all about making money by leveraging the high statutory damages allowed under the U.S. Copyright Act. For small business owners, copyright trolls are a huge annoyance because they consume two scarce resources: money and time. Getting ensnared in a copyright dispute is the last thing a business owner needs and wants when there’s plenty of other important work to do.

Just ask Peggy Farabaugh, owner of Vermont Woods Studio, a small furniture retailer. She needed a photo to illustrate the sale of furniture to a customer in Hawaii. So she went to a website that promoted free photography downloads. She downloaded the file and not detecting any ownership symbols, she proceeded to use it. In fact, the image sported a hidden copyright tag.

Soon, Farabaugh received a letter from an attorney demanding $9,500 for use of the photo. If she didn’t pay within 10 days, the attorney threatened to bring suit for $150,000, the maximum statutory damages allowed under the law. Internet research revealed the photographer who owned the photo. She also discovered that the person had filed a number of similar lawsuits over the last several years.

Farabaugh took down the photo from her site and called the photographer to explain. He refused to speak with her, referring her to his attorney. She then called and e-mailed the attorney, beginning a months-long negotiation that resolved nothing. Eventually, she received a letter from another lawyer demanding $12,000 and again threatening to sue for $150,000 if its demands weren’t met. Farabaugh called the new attorney to explain she didn’t have $12,000, but was willing to negotiate a lower settlement. The attorney refused and brought suit.

According to Matthew Chan, publisher of the website ExtortionLetterInfo.com, what happens is photographers post their images on free wallpaper sites. But once an image is used for a commercial purpose, they sic their attorneys on the unsuspecting downloader. Since the last thing people want is to hassle with an attorney, they’ll pay the initial amount, even though it’s too high. They just want the whole mess to go away, and they’re willing to pay whatever it takes.

Unfortunately, “feeding the trolls” in this way encourages even more trolling and more payments, which attracts more trolls. It’s a vicious cycle that you’ll want to avoid at all costs. Here’s how:

First, don’t use any image or artwork that displays a copyright mark. If you’re interested in reproducing it, contact the owner to see about licensing fees. If you don’t notice an ownership mark, don’t assume it’s free. Many times image thieves will download photos from photography sites and then crop out the copyright mark. Consequently, the absence of copyright doesn’t mean an image is free.

Second, before downloading an image from a “free download” wallpaper site, read the site’s terms of service. It could be that the image is free only for non-commercial purposes. If you use the photo on a commercial website or blog, you will have violated the site’s terms and may now owe a fee.

Third, don’t enter into discussions or negotiations on your own with a plaintiff’s attorney. Instead, retain your own counsel and let that person speak for you. Reason: it’s too easy to divulge information to an opposing lawyer that will ultimately be used against you.

Fourth, if you’re intent on not paying for an image, search for Creative Commons-licensed photos, which is easy to do on Flickr.com. These images are free to download as long as you comply with the owner’s usage guidelines. The U.S. government also provides access to copyright-free images.

Fifth, be very careful of invoking the fair-use provisions of copyright law to justify your actions. Yes, courts use four factors to determine fair use, but the application of these factors is a delicate balancing act. Just complying with one factor doesn’t necessarily mean your usage will be deemed fair.

Finally, don’t succumb to the notion that everything you see on the Internet is free for the taking. Just because millions of people pirate property—songs, films, books, photos, and the like—doesn’t mean it’s right for you to do so. Let your ethical values from the offline world guide your online behavior. If something doesn’t belong to you, don’t take it!

For more information on ethical business practices, please visit the National Ethics Association’s Ethics Center. For more information on affordable errors and omissions insurance for low-risk financial advisors, visit E&OforLess.com.