Digital Image Businesses and the Risk of Copyright Infringement By: Matt Barnsberg A digital image production company can do a lot for a customer both in terms of idea creation and design. However, the digital manipulation tools available today have made it so easy to take an image and change it, legal copyright and trademark boundaries can be quickly crossed. The subsequent results can get both the producer as well as the client into a lot of hot water quickly, depending on what the original image owner finds out and pursues in recovery. Image and Copyright Risks The ease with which an image can get a person or company in trouble is common, and the print industry is well-advised to watch the material it is presented with for a project and what it works on. Producers can get into trouble two ways. First, reproducing someone else’ licensed or copyrighted material is a first violation. The second problem, however, comes when the original material gets manipulated even further. It gives an evidentiary impression that the producer took an original image already copyrighted and changed it on purpose to avoid or circumvent copyright law. When proven by the original owner, the producer can be hammered with punitive penalties in court. And producers make great targets because they typically have deeper pockets as a business than the client does who started the problem in the first place. Part of the problem, however, is that clients won’t always be forthcoming or truthful about the material they want a producer to work on. In most cases where there is questionable material, the client will likely omit knowledge of the problem, leaving the digital producer to figure out if there’s a problem. A small group of clients with actively try to hide knowledge. In either case, the producer can still be held liable for any work on material that it does or could have had knowledge of being a copyright violation. Multiple Possibilities for Problems Because the digital image industry creates so many different products with writing and imagery, the risks for copyright infringement are numerous. Further, in many cases, the copyright infringement can occur with background writing or imagery as well as with direct, central use. So if a photograph has a background image of someone else’s intellectual property, it can create a violation. Both obvious and indirect violations can land a producer into a heap of trouble quickly, depending on whether the actual owner pursues a lawsuit after the fact. The format on which the writing or image is reproduced doesn’t make much of a different. This can include signage, building wraps, T-shirts, posters, pamphlets, basic photocopies and much more. All that matters is that the original was somehow reproduced in a commercial manner without the original owner’s consent or licensing involved. Another possibility for risk involves those new to the digital image industry. Many entrepreneurs are quite intelligent and understand their skill-set and trade very well. However, they also tend to have an arrogance to risk, assuming copyright problems won't happen to them. They are too smart to get into such issues and they will see a problem before it happens. More often than not, however, they don't see the problem coming until already knee-deep in a violation and related lawsuit. Potential Penalties Unlike contractual damages which just limit recovery to whatever it was a party may have paid, copyright legal damages can be far more costly. If an original owner suing a digital image producer can prove the business not only was aware of the image ownership but intentionally manipulated it or took false ownership, that litigant can recovery significant damages from both any profit made in the venture to punitive damages as well. For many small and medium-sized businesses this kind of lawsuit can be a termination notice, putting the business into bankruptcy if it doesn't have any kind of business insurance coverage to take the hit. And all too often this sort of result tends to be the case. Further, the business will suffer a financial loss have to pay for a legal defense. Hiring an attorney just for legal review and research is expensive enough. However, hiring an attorney for trial is extremely expensive, costing thousands of dollars by the time the trial has ended. Many such cases easily exceed $100,000 in costs just for small issues. Legal Defenses To fend off this kind of business risk from unscrupulous clients, digital image producers needs to have processes in place to both catch the problem as well as use as a proactive defense. A common approach requires clients to sign project order forms that clearly state the risks of copyright infringement and that the client expressly commits to the producer that the material involved is not subject to any known copyrights. Doing so provides a record that client stated to the producer the material was his own and lied if not, and that the business tried to prevent a violation was duped by another party’s illegal activities. Both work very well in court in absolving a business of responsibility later on. However, where a digital image clearly shows an obvious mark or sign of ownership, even with a client statement saying otherwise a digital image producer is pretty much under a legal burden to prevent any work creating a new or further violation. If the business doesn’t do so, and gets caught, later on the lawsuit will allege the mark of ownership was obvious and the business clearly ignored it, violating a copyright. Conclusion Because a copyright infringement problem can be a big pile of legal trouble that grows quickly, many digital image businesses can be well-served by simply consulting with a copyright and business lawyer on a regular basis to make sure their business procedures have the best defenses possible. In the best situations, problems will be avoided and disputes will never occur. However, if they do, a digital image producer can fend off a lawsuit quickly rather than getting stuck in a legal quicksand.