If you’re planning to use stock photos, illustrations, even video clips to market your law firm, you need to know the ropes. The last thing you need is to get entangled in a dispute about the misappropriation of copyrighted materials. Plus, it looks bad if your firm is accused of copyright infringement and your firm has an IP practice.
But First, a Little Background
In my former work life, I was a freelance art buyer at several ad agencies in New York City. Art buyers were hired to assist the creative department source and negotiate the usage rights between the agency, the artists, and models for our clients’ ads. While I loved being part of the creative and production side, I found the business side equally enjoyable. Plus, I was able to bring some of what I learned about intellectual property and copyright law from my photography degree to my position. I had regular phone calls with a junior associate who was the agency’s outside legal counsel. Today, that junior associate is the chair of the same law firm and still counsels clients on marketing, advertising, copyright and the law.
Eventually, I joined Doubleday’s Book & Music Clubs in Long Island as their full-time art buyer, again helping secure the rights for the photographers, illustrators and models for Doubleday’s ads and catalogs. I also worked closely with the division’s in-house lawyer and Doubleday’s director of legal affairs, who reviewed and approved our freelance talent contracts. At some point, I was dubbed “The Ethical One,” a moniker I still wear proudly as I often took the artists’ side when it came to copyright and ownership.
What Marketers Don’t Know About Copyright Usage Might Hurt You or Your Firm
One lawyer I spoke to said, “Marketers, especially those who are new to the business, are likely to have grown up with cellphones and the internet. And they may presume they can freely access and share content because they do this in their personal life.” Another lawyer recommended law firm marketers look to their professional organizations for more knowledge about copyright.
To help sort things out, I turned to Arizona attorney Ruth Carter, who is an authority on copyright and intellectual property. (Ruth has a regular column here on Attorney at Work.) The following Q&A should help clear up some confusion about copyright usage.
Common Questions About Copyright Usage
Q: Can lawyers use images grabbed from the internet for their CLE programs? It’s educational, right?
Ruth Carter: The answer to every legal question starts with “it depends.” You’re asking about fair use, and while we have the four fair use factors, there is not a black-and-white mathematical equation that you can use to know whether a particular use is protected by fair use. There is always a risk that you’ll be accused of infringement. And in the worst-case scenario, you’ll have to stand before a judge and defend your actions. I prefer to avoid this, so when creating a slide deck for a CLE, I use images that come with a license to modify and commercialize the images, or I get permission from the copyright owner.
Q: If a lawyer wants to include the perfect cartoon from The New Yorker in an industry presentation, can they do that? And does it matter whether the cartoon is used in a presentation to 10 people or a conference with 400 attendees?
RC: The only person who can come after you for suspected infringement is the copyright holder. If they don’t know or don’t care about what you’re doing with their image, you probably won’t get into trouble. The fewer people who see it, the less likely you’re going to get caught.
(Author’s Note: The New Yorker has a special site, called The Cartoon Bank, where you can license the rights for usage. Not every cartoon is available, but it’s an excellent place to start.)
Q: What about services like Canva and new entries like Unsplash?
RC: Read the terms of these services to understand the do’s and don’ts of what you can do with their products. Give careful thought to what might happen if you’re accused of violating someone’s rights with the images you use.
Q: I recently saw a watermarked stock photo displayed on a law firm’s LinkedIn page! So why is that unacceptable?
RC: Bwahahaha! You can tell that copyright is not a required class in law school. In general, a watermark indicates that you must purchase a license to use the image. Using a watermarked image might be a giant announcement of “We stole this” and “We don’t know what we’re doing.” It looks bad on so many levels.
In general, lawyers don’t want to deal with these issues. They want to deal with something once and be done with it. I recommend 1) getting irrevocable, perpetual, worldwide, paid-in-full, royalty-free licenses, so there’s less to keep track of and 2) try to find unique images, so your website doesn’t look like everyone else’s.
Q: When a law firm represents well-known brands, marketers are keen to include brand logos on the firm’s website or when responding to RFPs. Can they do this?
RC: Never put your clients’ logos on your site without their express written (preferably irrevocable) permission. I find this a bit of a turnoff because lawyers exist to serve their clients, not the other way around. If your client likes you, they will sing your praises and refer business.
Q: What about grabbing photos to create memes on your firm’s internal communications?
RC: My rule of thumb is never post anything online that you wouldn’t put on the front page of a newspaper. Even if you only meant it to be used internally or shared with a few friends. You can’t control where a post, image or meme will end up once you’ve shared it. Treat it as if it’s going to go viral and act accordingly.
What About “Royalty-Free” Images?
“Royalty-free” is a bit of a misnomer. The term does not mean that you can use the photos and illustrations without paying a royalty. Most times, “royalty-free” means you’ll pay a one-time fee without the need to renegotiate a price for usage at a later date.
The flip side of royalty-free content is that you might see another law firm using that exact downtown New York skyline photo, especially if your firm is on Lower Broadway, Maiden Lane, or near One World Trade Center. Most “royalty-free” images (from reputable stock houses) indicate where a photo may or may not be used. For instance, you may not be able to use an editorial image on commercial websites.
Whatever you do, keep a log (spreadsheets work just as well) of the stock photos and illustrations your firm uses in its digital and print marketing materials. Your list should include the stock houses’ ID numbers and website URLs. Many stock houses have merged in the past few years and the assets are reassigned to another company, potentially with new ID numbers.
Copyright Usage Do’s and Don’ts
- Do not post any images (photos and illustrations) without an agreement from the creator or stock house.
- Never publish your client’s logo unless you have permission in writing.
- Credit the creators wherever possible.
- Keep good records and track image description, ID number, and rights usage for your website, blogs and social media. You can create a simple spreadsheet or keep track using a database. Be sure several people in your firm know where the files and passwords can be easily located!
- Finally, just because you can, doesn’t mean you should. Likewise, when in doubt, don’t.
This post originally appeared on the Attorney@Work website on January 19, 2022.
Photo by Carlo Borella on Unsplash.