With few exceptions, copyright infringement lawsuits rarely generate headlines. This might lead brands to believe that the incidence of infringements and actions by the copyright holder are low, but this is an erroneous assumption.

According to attorney Edward Greenberg, “99% [of copyright infringement cases] are handled on a confidential basis…” Most cases are settled out of court, and even the ones that get a court date are largely settled before going to a jury because it can be incredibly expensive to litigate.

Even if your company is dead set on using free content (here’s why that’s a bad idea), you still have a legal and fiduciary responsibility to ensure that the way you use content has an appropriate license and, where necessary (as in the case of some Creative Commons licenses), proper attribution.

Check out the copyright infringement cases below to get a better understanding of the consequences, and to ensure your team isn’t making the same mistakes.

Andrew Paul Leonard v Stemtech Health Sciences, Inc

Plaintiff attorney: Seitz, Van Ogtrop & Green, P.A.

Key concept: Copyright infringement and registration

Details: Microphotography expert Andrew Paul Leonard’s photographs of bone marrow stem cells were stolen and used on the Stemtech website and other marketing materials.

Status: The court ruled in Leonard’s favor for copyright infringement, awarding him $1.6m in actual damages. However, he was denied statutory damages because he didn’t register his images until after the infringement occurred.

Reinsdorf v Skechers

Plaintiff attorney: JML Law

Key concept: Copyright infringement and registration

Details: Photographer Richard Reinsdorf sued Skechers for using his images in certain advertisements beyond the previously agreed license. Reinsdorf claimed damages as a percentage of Skechers’ total revenues, amounting to $250m. Skechers claimed that they were co-authors of the images because they retouched the final images.

Status: The court ruled that Skechers’ claims of co-authorship were dubious, but couldn’t find a causal relationship between the infringement and revenue. Additionally, Reinsdorf failed to register his images prior to the alleged infringement, and thus was denied statutory damages.

McGann v Bruno Mars

Plaintiff attorney: Liebowitz Law Firm, PLLC

Key concept: Copyright infringement, social media use, and DMCA

Details: Photographer Catherine McGann posted her photo of a young Bruno Mars in Elvis regalia to her Instagram. In turn, Peter Gene Hernandez (aka Bruno Mars) posted the photo with her copyright watermark removed – a violation of the Digital Millenium Copyright Act – on his Instagram account. 

Status: Dismissal with prejudice (The case was likely settled)

Michael Miller v Kendall Jenner

Plaintiff attorney: Doniger / Burroughs

Key concept: Copyright infringement

Details: As a part of a limited edition series under the Kendall + Kylie capsule collection, Michael Miller’s image of Tupac Shakur was stolen and printed on t-shirts alongside other deceased musicians including Notorious B.I.G. and Jim Morrison. The shirts were quickly pulled and Jenner apologized, but Miller filed suit for the blatant infringement.

Status: Settled through mediation

Dancel v Groupon

Plaintiff attorney: Edelson PC

Key concept: Rights of publicity

Details: Groupon used Instagram’s API to scrape photo from user accounts without their permission. The location tagged images featuring identifiable people were then used by Groupon to advertise deals with various businesses – violating Indiana state law to control how one’s likeness is used for commercial purposes. Dancel is the lead plaintiff in a class action suit that was filed in 2016, and still unresolved. In other words, irrespective of outcome, both parties have undoubtedly racked up major legal bills.

Status: On-going

Disclaimer: This article does not constitute legal advice. Always consult with a lawyer.

Copyright Crash Course: What Marketers Need to Know

Want to learn more about copyright? Watch our on-demand webinar, Copyright Crash Course: What Marketers Need to Know!

In this on-demand webinar, you’ll learn:

• What an image license is in relation to your brand’s content
• The dangers of using free content
• How to navigate copyright in the age of social media
• Lessons from copyright battles between brands and creators
• Tips for managing usage rights and a new solution from PhotoShelter that will help you navigate these complicated issues

 
Next Up: A Picture Is Worth a Thousand Words – and Maybe a Million-Dollar Lawsuit