Attorney Steve® Photo Infringement Updates – RSS feeds can lead to legal trouble?  Yes, hard to believe.

Introduction – hypothetical situation

Nothing like learning that there is more liability lurking on your website this time through Photo Infringement coming through your RSS Feeds that you subscribe to and post on your website through the use of a word press plugin.

In today's hypothetical, lets say you are the owner of website “Software Audit Tips” (“SAT”) and you subscribe to RSS feeds from let's say “The Business Software Alliance – “BSA” (I am not sure if they have a feed or not),

Then, the BSA has a link on their website that says “Subscribe to RSS Feeds.”  As the owner of SAT you say “gee, it would be a great idea to spruce up my blog and offer the BSA feeds on my website, through the use of a plugin.  RSS feeds, after all, normally just have a link to a website.

However, BSA let's say posts a blog that uses a photograph (that they don't have the rights to) and this blog is sent to the SAT website through the plugin, and the whole article, including infringing photo, is available for the public to view through the SAT website.

Fast forward, one of the photo infringement rights companies (PicRights) or Higbee & Associates (photo infringement law firm) finds the photo on both websites, and decides to come after one or both companies for copyright infringement and seeks hundreds or even thousands of dollars for display and/or copying of a single photo.  Will they win?

Well this presents an interesting issue.  Let's look at the copyright law for guidance.

Right of Public Display of Copyrighted Work

A copyright holder (ex. a photographer who has a photo, a videographer with a video, a font designer who has copyrighted the computer code, etc) obtains certain “exclusive rights” when they create a “work of authorship fixed in a tangible medium of expression.

Among those rights is the rights to:

• Make copies of the work
• Distribute the copyrighted work
• Publicly perform the copyrighted work
• Make derivative works based off the original copyright (ex. turn a book into a movie)
• Publicly display a copyrighted work

This is known as the copyright “bundle of rights” and each can be individually licensed.  And could be exclusive or non-exclusive.

In our example above the problem was the RSS feed automatically populated into the website through a website plugin.  So the owner of the site had no say in what got populated on his page.  The actual photo resided on the server of the company that served up the RSS feed, it was their bad decision to post the whole article, including copyrighted photo, into the RSS feed.

Both the creator of the blog (the party that served up the offending page) would be held directly liable for copyright infringement, but also like contributory copyright infringement for enabling the end user to publicly display the photo on their website.

It's a mess, so the main point is you do not always know what you are getting yourself into when you subscribe to an RSS feed.  Whatever the generator of content creates, you get posted on your website (likely a “public display” even if a copy of the photo does not reside on your server).

Attorney Steve® Tip: If photo companies are now trolling in RSS feeds to find infringements of their photos, everyone has to be on high alert.  If it's on your page, you can be charged with copyright infringement.

A few key things to consider if you get a demand letter from PicRights or Higbee & Associates

1.  Make sure you get a copy of the copyright registration (you want to know who the owner of the work is).
2. If they do not have a copyright registration certificate, it is not likely they would attempt to file a lawsuit.  A new United States Supreme Court case states a copyright holder must have a certificate of registration (actually approved and granted – not just filed for registration) in order to file a lawsuit.  If they cannot produce this, me personally, I would think twice about paying them.
3. In mosts cases I would look to settle for $450 to $1,000.  However, there are certain artists and photographers that like to file federal court lawsuits.  As to these, you will probably have to go higher, perhaps much higher (we have seen demands of 20k and even 50k in one case).
4. Review case for “fair use” potential
5. Review case for de-minimis potential defense
6. Review case for scenes-a-fair defense
7. If you do not have a license for the photo, immediately take it down and screen shot the date so you can show that to the judge if needed.
8. Consider factors constituting an innocent infringement defense