Posting Iconic Copyrighted Images without a License

Yes, you can easily cut and paste an image you find on the Internet. However, that doesn’t mean you should. If the image is an iconic image, your posting could easily generate a lawsuit.

Consider the example of North Jersey Media Group (NJMG) which is a newspaper publisher and the copyright owner of the now-famous September 11, 2001 photograph of three firefighters raising the American flag at the ruins of the World Trade Center site (photo shown here). NJMG has sued several parties for using that image without its permission.

After a court declined to dismiss a lawsuit in Fox News Network’s favor on fair use grounds, Fox and NJMG settled for an undisclosed amount. The Fox loss may have persuaded Sarah Palin and her political action committee to offer $15,000 to settle a similar ongoing lawsuit filed by NJMG after the image was posted on Palin’s website and Facebook page. Disagreements over the confidentiality provision to go into the settlement agreement have slowed down the NJMG-Palin settlement process.

Hopefully, most realize that the appearance of an image on the Internet does not place that image in the public domain and does not constitute permission to use the image in anyway one wants. Nevertheless, even some media organizations that should know better remain surprisingly clueless on this copyright principle.

Falsely Implying that a Celebrity Endorses Your Company or Product

Celebrities typically receive compensation when lending their names or images to promote a product. As a result, celebrities tend not to appreciate the unauthorized association of their persona with random products. It’s a violation of their publicity rights and such violations often lead to celebrity lawsuits against the offending company.

One high-profile 2014 example started with a paparazzi photo capturing actress Katherine Heigl leaving a New York Duane Reade drugstore and carrying bags from the store. Duane Reade posted the image online with the caption “Even @KatieHeigl can’t resist shopping #NYC’s favorite drugstore.” Heigl launched a lawsuit alleging violations of the federal Lanham Act as well as the New York civil rights statutes and seeking $6 Million in damages. Duane Reade and Heigl eventually settled.

Of course, publicity rights violations are not limited to online postings. They can result from using a famous persona in other media such as placing the celebrity’s image on a billboard, using the celebrity’s name or nickname in a magazine advertisement, or superimposing the celebrity’s head on a greeting card.

Inadvertently Liking, Re-Tweeting, or Sharing Infringing Content

It should be no surprise that much material posted online violates copyright laws. The copyright owner sometimes launches a lawsuit against the person or company that posted the infringing material. The forum – such as YouTube, Twitter, or Facebook – on which the material is posted has typically taken advantage of the safe harbor provisions offered by the Digital Millennium Copyright Act and is, therefore, insulated from any copyright infringement liability stemming from infringing material posted by its users.

But what happens if we – without realizing that the material is infringing - re-tweet, pin, like, or otherwise share infringing content? Does that action make us subject to a copyright infringement lawsuit?

It usually does not.

Potential Lawsuit Against Innocent Online Bystanders?

Some blog chatter indicated that a recent lawsuit did target such innocent online bystanders. In June 2015, photographer Dennis Flaherty filed a lawsuit against the beverage company Big Red after Big Red incorporated Flaherty’s photograph of the Alamo into Big Red’s Twitter and Facebook postings. In addition to naming Big Red as a defendant, Flaherty also named five unidentified parties as defendants – referring to them in the complaint as “Does” (i.e., as in the colloquial John Doe or Jane Doe).

Some commenters interpreted the inclusion of these “Does” to mean that Flaherty was suing people who simply visited the Big Red social media account and re-tweeted or pinned the Big Red posting containing Flaherty’s Alamo image. After looking at the Flaherty v. Big Red pleadings, I believe that’s a misinterpretation of Flaherty’s intent.

Here’s Where It Gets A Bit Complicated

There are different forms of copyright infringement. In his lawsuit against Big Red, Flaherty alleged that Big Red was liable for direct copyright infringement, vicarious copyright infringement, and contributory copyright infringement. Each type of infringement is a separate claim with distinct components. The contributory copyright infringement claim is relevant to my discussion.

To win the contributory copyright infringement component of his lawsuit, Flaherty needed to show that while Big Red did not directly engage in the infringing activity, Big Red had reason to know such infringing activity took place and Big Red materially contributed to the infringing activity. In other words, in order for Big Red to be liable for contributory infringement, a third party must have committed direct infringement.

Flaherty identifies the social media users activity of pinning or re-tweeting as the direct infringement that makes Big Red’s contributory infringement possible. According to the complaint, Big Red committed contributory copyright infringement when it posted Flaherty’s Alamo photo on Twitter and Facebook, since Big Red should have known that other social media users would share the infringing post.

Even though the social media users’ re-tweeting and pinning might technically constitute infringement, Flaherty did not sue those social media users and was not referring to such social media users with the “Doe” designation. This interpretation is supported by Flaherty’s description in the complaint of the “Does” as the “agent, affiliate, officer, director, manager, principal, partner, joint venture, alter ego, hired contractor, and/or employee of” Big Red or its corporate subsidiary.

So, at least for the moment, there appears to be no pending lawsuits against innocent online bystanders who re-tweet, like, and similarly share.

(Flaherty and Big Red did settle and the case was dismissed on August 12, 2015. )