Photo sharing online is very popular. If you are considering starting a photo sharing website, it is important to understand there are legal issues you need to address.
Copyright is a form of intellectual property. It also applies automatically to photos. This right can create a touchy situation for a photo sharing website. First off, you need to include language in the terms of the site in which the copyright holder gives you a license to post the images on the site. Yes, this is even the case where the member uploads the photo.
The next legal issue involves an odd situation. What if the photo uploaded by the member is not their own? You would be surprised at how often people see a picture they like, copy it and repost it in various locations. If this occurs on your site, you are potentially liable for copyright infringement.
How do the Facebooks of the world keep from being sued into bankruptcy when their members post infringing images? The answer is the Digital Millennium Copyright Act of 1998.
The “DMCA” contains provisions providing websites with immunity from copyright infringement claims if the site complies with the law. If a member of your site uploads a photo that infringes on the copyright of a third party, the third party is restricted to suing the member. The copyright owner cannot bring a claim for money damages against you although they can sue for an injunction [this is exceedingly rare].
So, what’s the catch? To maintain the immunity, known as a “safe harbor”, you must comply in detail with the specifications of the law. The requirements are complex, but include items such as designating and registering a claim agent, publishing a DMCA Policy, forming a repeat infringer policy and following through on very specific notice deadlines detailed in the law. You should always use a lawyer for this process, even if it is someone other than me.
Then we have legal issues tied to the conduct of site visitors. The primary concern here is visitors will copy images from the site and republish the images elsewhere. You need language in the terms and conditions prohibiting this conduct. It also helps to include watermarks on all pictures so you can track them as well as disabling the right-click/save function so most people can’t copy the images on the site.
What if you intend to allow site visitors to buy or use the images? We return to your terms and conditions and cover issues such as:
- Will the visitor be charged?
- What type of license for use will they be granted?
- Where can the image be used? [websites, email, brochures, etc.]
- How often can the image be used?
- Can the image be cropped, resized or photoshopped?
- Other issues relevant to the unique nature of your site.
The legal issues associated with starting a photo sharing website are relatively straightforward. The devil is in the details. The agreements with members should be written very carefully.
If you are considering starting such a site, feel free to contact me today to get your legal ducks in a row.
Richard A. Chapo, Esq.