Hey there, Trout Nation friends! Remember a few weeks ago when I was like, surprise, I’m getting sued? Well, now that the suit is settled, case closed, glad that’s over, I can tell you what happened and more importantly, how to protect yourself from some common mistakes, because “oh shit, I didn’t know it worked like that,” is not a valid legal defense.
Like four years ago I had a series on this blog called “Double Steve Bonus Monday.” Born out of an off-handed comment a friend made after her young daughter’s surgery (anesthesia left the poor kid seeing Blue’s Clues in stereo), I posted an image of someone either named Steve or with a name from that same Steve-centric group, like Stephanie or Stefan. I would repeat this image one on top of the other with no explanation whatsoever as to why they were there or what “Double Steve Bonus Monday” meant. It was just garden variety Jenny weirdness that amused no one but myself. One of the Steves was Steve Forbes. And that’s the photo I got sued over.
You have no idea how much I laughed over middle-class me getting sued about a picture of a billionaire.
About a year ago, I got an email from a law office. I get a lot of vaguely threatening emails from law offices and they’re always very obvious scams claiming that you owe money to whatever random company you don’t know and you better settle up or they’ll send someone to your work to get the money and you’ll be embarrassed and I’m like, jokes on you, I embarrass myself at my work all the time. But this one looked pretty legit. They were contacting me on behalf of their client, whose photo I had used on my website without a license. And they wanted nearly $7,000.00 to make things right.
I thought, well, that’s weird. Why would I need a license? I didn’t use it on a book cover or a t-shirt. I didn’t put it on an album cover or run it behind a paywall. I didn’t sell the image and I didn’t make any money from it. It wasn’t like these were the days of the wild, wild internet west and I simply didn’t realize there were laws governing the use of other people’s photos. In fact, I thought I had a pretty good handle on what did and did not constitute fair use (I did not) and that since my site wasn’t monetized at the time of the post and the photo was used in part as a parody, I was in the clear.
An industry professional I spoke with felt the same way. “This seems like it would fall under fair use,” they said. “I wouldn’t worry too much about it. Just take it down and they’ll back off.” On top of that, this person said the email felt “scammy” because of the upfront demand for money. Several people I spoke to about it, all of them professionals in creative fields, felt that coming out of the gate asking for cash was a red flag. Besides, anyone who’s ever written fanfic knows that a C&D is the first step! Nobody takes your money unless you disregard the C&D!
All of that is wrong. You might be sitting at home right now thinking of the time you used a photo of a celebrity in your IG book promo or you tossed a few song lyrics into your fanfic and maybe you’re sweating a little bit, but you’re thinking that of course, you’d take that down if you received a C&D. But despite the conventional wisdom spouted on the internet, the first step in an infringement lawsuit is not a C&D. The client and their attorneys are under no obligation to give you that chance to remove the material before they attempt to recover financial damages.
Also, the way I used the image did not fall under fair use. Though Steve Forbes was being made the target of a joke (or parody, to get all fair use-y), it wasn’t Steve Forbes suing me. It was the photographer, suing because I had used his work without permission. If I had altered the image or copied the image in a parody of that particular photographer’s style, that would have been a parody, but being a photo of the subject of a parody wasn’t enough to make it fall under fair use. A lot of you are probably going, “duh, Jenny, anybody could have figured that out,” but based on the conversations I had with people who work with this stuff all the time for a living, it’s apparently not that obvious.
My response to the first email was to remove the images from the site and simply say, hey, I don’t have that kind of cheddar lying around, this is all I can do for you. I figured that taking it down was the end of things, but I was once again contacted with the demand for money. I responded that I had removed the photo, no malicious infringement was intended, and they should consider the matter closed because I still didn’t have that amount of money available. When they contacted me yet again, I lost my patience. I had done some research on this law office and learned that they make their money with software that crawls the internet doing reverse image searches of all their clients’ registered copyrights. They then issue the offer of a settlement and threat of a lawsuit.
After responding in good faith to a few of their attempts to threaten me with judgments and court costs in excess of hundreds of thousands of dollars, I snapped. I told them that I had removed the photo and that while I respected their hustle, I wasn’t going to pay them because I simply did not have the money.
I didn’t hear from them for months. When they contacted me again, it was via first class mail, with one last attempt to collect, and the prepared brief they would be filing. At that point, I sought legal counsel. Here, I began to understand just how dire my position was. The work was not transformative in itself. And though I hadn’t sold the image or put it on anything else I sold, I did monetize my website in 2017 with an affiliate link, while the post from 2015 was still visible on the site.
To date, I’ve made $37.00 from the affiliate link, but the law wasn’t on my side; they were suing for statutory, not real, damages, meaning the judge could have awarded them anywhere from $700.00 to $150,000.00 dollars plus court fees and the legal fees paid by the client. Since it was a Double Steve Bonus Monday, I’d posted the photo twice. If I lost, I was warned, I could potentially wind up with nearly half a million dollar judgment against me. Obviously, I decided to settle.
Now, I want to reiterate that this was not malicious infringement. I did not post this photo thinking, “Aha! I will use this photographer’s work and become rich! Fuck that guy!” I just didn’t understand fair use the way I thought I did (this will not be the last time that my supreme confidence in my own understanding of a topic will be my downfall). And I also want to reiterate that I appreciate copyright lawyers and the work they do to keep creatives safe. I’m not saying I didn’t fuck up and do something that infringed on someone else’s copyright; I did and I’m horrified that my ignorance resulted in me doing something I find repugnant. But I don’t think I’m the only person who carelessly commits infringement without realizing it, so here are some tips to avoid lawsuits:
- Always use the usage rights filter tool when Googling. I could have saved myself a lot of hassle by knowing this trick prior to 2015. You can do a Google image search for pictures that are labeled for reuse for your needs.
- Know what constitutes commercial use. One tiny affiliate link is all it takes to bump your site from noncommercial into commercial use. Noncommercial use is also subject to copyright laws, but it’s a lot more difficult to argue against statutory damages if you’ve even attempted to monetize the content. And it doesn’t matter if you used the photo on your blog long before you monetized it.
- Don’t use photos with watermarks on them, for god’s sake. That’s what the watermark is for. There’s currently an author on Twitter using a watermarked photo as her profile header while she’s out there screaming about how she’s going to sue everyone for everything under the sun and I just stare at it every time I see it. The watermark is clearly visible. If all your images bear the ghostly mark of “SHUTTERSTOCK” across them, it’s hard to believe the person using it had no idea it was copyrighted. (For a while, there was something of a meme to use blatantly watermarked photos in jokes. This was a bad idea).
- Don’t use photos of celebrities in your book promo! Authors post fantasy casts on their blogs all the time and we don’t think anything of it. It’s just our blog, right? We’re just excited to share the vision in our head with our readers. That’s great! But when we use photos to do it, we not only tend to use copyrighted images in our posts, but we might be breaking laws against using the image of the person in the photograph, depending on what text or links accompany it. You could not only be infringing on the photographer’s copyright, but also the likeness rights of the person in the photo.
- Save proof of your licenses. This is another bad habit I know that a lot of people have: thinking, “Well, if anything ever comes up regarding this stock image, there’s a record of my purchases on the site.” But what if the stock site where you bought your book cover images shuts down, taking your account info with it? You can’t prove you purchased that license if you haven’t downloaded it or taken a screenshot of your receipt.
- Make sure the photo you used is actually the one you’re being sued over. Let’s say you did everything right. You used the Google image search tool and you found a photo labeled for reuse or covered under a creative commons license. You’re using it in a way that is covered by its usage rights. And you suddenly find yourself on the receiving end of a “pay up” letter. While I researched my situation, I found cases where people had been sued by law firms using various types of software to search for their clients’ photos online. Only, the photos they sued over didn’t belong to their clients; they just happened to be very similar shots by virtue of a group of photographers standing in the same place, shooting from similar angles. This is most common when people use images taken at large events, like press conferences and political rallies, but it has happened (in at least one case, a photographer was sued for using his own photo because it looked so much like a photo taken by the photographer who’d been standing behind him). Before you pay up, make absolutely sure it’s the same photo.
- Be sure that you actually understand what “fair use” is. Again, a lot of us don’t. Fair use doesn’t mean just not monetizing something or simply using it for internet fun. Do your research and if you’re in doubt…don’t use it. Or, buy a license. Take it from someone who had to endure almost a year of stress over this and who is now slowly crawling through old posts to remove any copyrighted images I had assumed I was using properly.
What about all those gifs, Jenny? You may be asking. That one is trickier, as there has never been a ruling in a case of gifs and copyright infringement, but let me tell you: if a ruling came down tomorrow? I would remove every single one from my site.
Since I went public about all this, Trout Nation has helped me out considerably. So far, you guys have donated $5,800.00 to my legal defense GoFundMe (the full $7,000.00 will cover the settlement and some of my legal fees) and I am beyond grateful. A fantastically good Samaritan financed the full settlement, so the GoFundMe money is going to them. Anything I can’t pay off via GoFundMe I’ll pay off as their credit card bill comes in. This was so kind of them, as I was able to avoid taking out a high interest loan. Not everyone has that kind of support; I’m super lucky to have so many people out there who have my back and again, I am profoundly grateful for that support. But knowing that not everyone has the kind of support makes me super nervous for other members of the writing community who may be unwittingly making the same mistakes. “Ignorance of law excuses no one,” as the saying goes, and we all need to be more vigilant about the ways we’re using images on our blogs and social media.