Copyright
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How not to source images for your client’s websites

Camera-for-Hoffmann-post

If you’re a designer who source images for a client’s website, do you ensure you and your client have the right to use them?

An interesting wee tale

A UK case from 2012 provides a number of important reminders for those who design and own websites, including public sector agencies (Hoffman v Drug Abuse Resistance Education (UK) Ltd [2012] EWPCC 2 (19 January 2012)). It’s an interesting tale about a website owner who copied photos from another website in the mistaken belief that they were Crown copyright photos that could be re-used without permission when, in fact, they could not. There’s a photographer, a charity, a web developer, a government-sponsored website, the photos and … a copyright infringement claim. This isn’t a WordPress-specific story, but one that may be of interest to some WordPress users.

Briefly, the main facts appearing from the judgment are these:

  • Mr Hoffman was the copyright owner of a range of photos of drugs;
  • the defendant charity published copies of those photos on its website;
  • the defendant had used a web design firm to produce its website;
  • that firm had found a Government sponsored website called “Talk to FRANK” on which the photographs appeared;
  • the defendant understood that the site was covered by Crown copyright and that the images could be re-used when, in fact, they could not; the photos were not Crown copyright;
  • the Department of Health acknowledged the site was not clear and tried to pursue the matter on behalf of the defendant (and others) but without success;
  • Mr Hoffman brought proceedings against the defendant for copyright infringement.

The defendant’s position was that it “had not intentionally or knowingly infringed [Mr Hoffman’s] copyright” and “the Department of Health and their misleading web site were the cause of any infringement”.

The Court decided that the defendant was in fact liable. The fact that the defendant may have thought that it had permission to use the images was not a defence to infringement under the relevant provision of England’s Copyright Designs and Patents Act 1988. Similarly, the fact it had employed a firm to produce the website did not enable the defendant to avoid liability.

The defendant could also not rely on section 97(1) of the Act which states that “[w]here in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.” The court sympathised with the defendant but held that the facts did not support reliance on this defence:

“The defendant understood it had permission under what it understood to be the relevant copyright. That is a very different thing from an argument that the defendant had no reason to believe copyright subsisted at all … . To believe that one had permission under (in this case) Crown copyright is the opposite of a belief or reason to believe that there is no copyright in existence.”

The court awarded damages, interest and costs in favour of Mr Hoffman.

Reminders

The case serves as a reminder for a number of players in the web industry, including (on the facts of this case) public sector agencies:

  • web designers need to be careful when suggesting to clients that they can reuse copyright images or other copyright content from other websites; without permission from the true copyright owner, such content should not be re-used;
  • if in doubt as to whether third party web content can be re-used, the safest course is to get in touch with the site owner (or, if it’s clear that the content comes from another source, that source);
  • public sector agencies need to be careful when describing the copyright status and re-use permissions of copyright content on their websites because, if they get it wrong, they can expose members of the public to risk at the hands of the true copyright owners (and could themselves be the subject of challenge or feel at least ethically obliged to assist those who have unwittingly upset the true copyright owners); and
  • website owners need to be careful to ensure, when using third party copyright content on their websites, that sufficient rights clearance processes have been followed (unless they are happy to run the risk of a claim of infringement).

What about you?

Have you ever found yourself in a similar position? If so, feel free to chime in with a comment below.

4 Comments

  1. Terry Thorson says

    I frequently find that clients tell me that I have the right to this or that photo or newspaper article when in fact that is not true. And they get testy with me when I refuse to use the material without express permission. I have included a line in my contracts to state that the client is responsible for website content. Does that protect me?

    • Richard Best says

      Hi Terry and thanks for your comment. It really depends on whether you are the one that adds content to the client’s site and how the clause in your contract is worded. If you add third party copyright content on instruction from clients in circumstances where you’re not sure that your client is licensed / has permission, you might want to protect yourself against the risk of a copyright owner complaining – against you – if a client doesn’t actually have the right to post content it says it does because, strictly speaking, you are engaging in an act of copying when you add content to a website. You could do that by adding an indemnity clause in your contract under which the client agrees to indemnify you against loss or damage you may suffer as a result of a third party claim against you caused by your adding copyright content to the site on instruction from the client (that’s not the precise wording of such a clause; just the gist). All this said, you are unlikely to be the natural target for complaint. The site owner / client is. You’d be pretty unlucky to find yourself landed with a copyright infringement claim. If the client is the one adding content to the site, and assuming you’re not hosting it, you’re probably safe. This isn’t legal advice, of course, as I don’t know what country you’re in, what laws apply and what your contract says. Despite that, hope this helps.

      • Terry Thorson says

        This talk of contracts actually made me realize that a great deal of my work is for free or cost for local nonprofits or volunteer organizations. (Building websites beats knocking on doors or making phone calls in my book.) I do not have a contract with these groups; never thought about it. I guess due to the constant turnover in board memberships and general group dysfunction, I never thought to present a contract. There is my question for you: Would volunteer work be better served by having a contract? Who would the contract be with — the group’s executive board (who are usually unpaid volunteers as well)? Does an exchange of money (even if just to reimburse expenses) alter the relationship? I host WP websites, and it’s easy for me to add sites at no additional fee beyond the domain name. (This is in the U.S.)

        Frankly, these are the groups with members most inclined to tell me I have a right to re-post articles from outside sources. I used to compromise by linking to the articles but nowadays most of these online sources are behind paywalls.
        In some cases I have handled this myself by getting an email from the newspaper editor giving me the rights to reprint, or saving the email from the member who claims to been given permission to reprint. Most of this stuff is small potatoes, but of course that doesn’t change the legal obligations.

  2. Hi

    I am in the process of putting together a hobby interest site where the intention is to collate and curate links to other sites of interest to the hobby. The pages will contain copyrighted information. As I intend to display the linked page in an iFrame will this cause me any issues?

    Many thanks.

    Andrew

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