Understanding photography copyright law with Hashtag Legal’s Jamie Lieberman

Learn how to avoid copyright infringement when using stock photography with our guest Jamie Lieberman, owner and founder of Hashtag Legal. Jamie has been a practicing lawyer for 15 years. Today, she partners with clients across verticals including influencer marketing, creative services, and e-commerce.

Five things you’ll learn from this episode:

1. Understanding what a license to use a photo is
2. The pitfalls of using stock photography
3. How to create policies that prevent cease and desist letters surrounding stock photo photography
4. How to respond if you receive a cease and desist letter for using copyrighted photography
5. Best practices when using stock photography and other creative elements

Quotables

• “If you’re asking someone to create work on your behalf, you also have to make sure you’re getting the rights to the work being done.” -Jamie Lieberman, @hashtaglegalllc
• “It’s important to have an understanding not only of, ‘I just bought this stock photo and I’m going to use it,’ but also, ‘what does the license allow me to do?’” -Jamie Lieberman, @hashtaglegalllc
• “If you get a cease and desist letter, the first piece of information and advice I have is don’t ignore it.” -Jamie Lieberman, @hashtaglegalllc
• “The better you keep your records, the better chance you have to mitigate any copyright damages.” -Jamie Lieberman, @hashtaglegalllc

About Jamie Lieberman

Jamie Lieberman, owner and founder of Hashtag Legal, has been a practicing lawyer for 15 years. As an experienced entrepreneur, Jamie understands the unique needs of business owners at different stages in their organization’s growth. Today, she partners with clients across verticals including influencer marketing, creative services, and e-commerce. She has a deep commitment to making legal photography accessible and regularly speaks about legal matters, the art of negotiation, and entrepreneurial topics at leading industry events like Alt Summit, Podcast Movement, and FinCon and as an expert source for media like Digiday and Forbes. You can also catch her as a co-host on The FearLess Business Podcast.

Jamie’s contact info and resources:

• Website: hashtag-legal.com/ontopofpr
• Hashtag Legal’s Instagram: instagram.com/hashtag_legal/
• Jamie’s LinkedIn: linkedin.com/in/jamie-lieberman-8618b54/

Additional Resources:

• Axia Public Relations: https://www.axiapr.com/ 

Presented by: ReviewMaxer, the platform for monitoring, improving, and promoting online customer reviews.

About your host Jason Mudd

On Top of PR host, Jason Mudd, is a trusted adviser and dynamic strategist for some of America’s most admired brands and fastest-growing companies. Since 1994, he’s worked with American Airlines, Budweiser, Dave &

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Transcript

- Hello and welcome to On Top Of PR, I'm Jason Mudd. I'm glad you're here today. We have a guest named Jamie Lieberman. She's an attorney with Hashtag Legal. I first met Jamie through listening to other podcasts and I found her to be incredibly intelligent and informative and helpful when it comes to legal matters in the creative and corporate communication space. Today, I've invited her to be a guest so we can talk about stock photography. I hear so many stories of companies receiving a cease and desist letter, where they were using a stock photo that they either thought they had rights to or someone just negligently just threw it on their website or on their social media. And now they're having to pay the cost of that issue in air. Jamie is gonna walk us through what to do and how to handle it, how to create policies at your organization to prevent this from happening and how to respond when you get that letter and other best practices for licenses of photography and creativity. This was a great episode. I really liked it. You're gonna like it too. I'm glad you're here. I think you'll be glad you're here too. Don't forget to share this episode because I think many of your peers and people in your own team are gonna need to hear this message and your team is gonna learn something from it that will help you prevent these issues from happening in the future.

- [Narrator] Welcome to On Top of PR with Jason Mudd presented by ReviewMaxer.

- Hello and welcome to On Top of PR I'm your host, Jason Mudd. And it is my pleasure to introduce you to our guest today Jamie Lieberman, Jamie, welcome to the show.

- Thank you.

- We are really glad you're here. Why don't you do us a favor and just give us a couple sentence bio of you and your background for those listening.

- Sure. So I'm a lawyer, so you saying you're glad I'm here makes me very happy 'cause I don't hear that often. I am the founder and the owner of a law firm called Hashtag Legal and we specialize in working with creators and individuals in the online space. We work with agencies and brands. We work with creatives themselves and we provide services in intellectual property contracts, privacy website terms and conditions, all the good stuff that happens online. I've been practicing for the last 15 years and I've run Hashtag Legal for about half of that. So I'm excited to be here. Thanks for having me.

- Well, we're really glad to have you. And I love working with attorneys 'cause I sense that they provide incredible value as long as they're advising me and not upset with me, right? That's always the right side of the law to be on and where I like to stay. So, you know, we were just talking before we pressed the record button that we've actually met virtually through podcasts. So it's nice to have you on, On Top of PR and the topic today is one that I find as a small business owner a little bit of an achilles heel if you will which is the whole issue of stock photography. So first of all, just I think is maybe a little bit of a disclaimer or maybe just a PSA for those that are tuning in. I don't know anybody who says, "Use a lot of stock photography," right? It's always better to use custom photography. We could talk about that. Maybe I'll do a solo cast on that about why that makes sense for marketing. From a legal standpoint, why don't you set the table for why it's better to use custom photography than stock photography?

- So I wanna back up a little bit and sort of lay the foundation in general about what we're talking about from a legal perspective.

- Yeah, please.

- And I'm also gonna give my little PSA, I guess, which is... This is just information and it's not legal advice. So I have to say.

- Yeah, thank you.

- Yeah, so what we're talking about when we're talking about utilization of anybody else's work and we'll stick with photos is copyright law. And so the important thing to remember is when you are utilizing anybody's work, somebody else's work, say a work that a third party created. You just have to make sure that you have the right permission to use it in the way that you want to. So let's start there. And so we can certainly separate out custom photography with stock photography but we're really talking about the same thing, because if you're asking someone to create work on your behalf, you also have to make sure that you're getting the rights that you want when you're asking them. So that's the custom side. And on the stock side, when you go to say a stock website or a, you know, any of the stock photo websites, you have to make sure that when you are subscribing or if you're using one image or multiple images you understand what that licenses of how you can use the image and a license to back up and I'm gonna make this... I'm not gonna go too basic but just so people know what that means is when you are an owner of a copyright, which means usually that you've created a work of some kind you have certain rights in that copyright and those rights can be given away or they can be sold and that's called licensing. So when we're giving away or selling any one or all of the rights in a copyright, that's a license. And so licenses are really complex. So it's important to have an understanding not only of, "Yeah, I just bought the stock photo. "I'm gonna use it in X, Y, and Z ways." But also, what does the license allow me to do?

- That's an excellent summation. Thank you for sharing that. So, I'm gonna set the table a little bit for why I think this is really important beyond the ethical issue but the issue that I see and, you know, you can Google this very easily, but, you know, it seems that Getty images is the most prominent and most well known for this, but you can get a letter in the mail at your company that says, basically we found that you're using this image on your website, we don't have any record of you purchasing it from us. And not only do you need to take the photo down but you now owe us for license use or back use of this image. And, you know, so when people get this letter they're kind of first of all, they probably don't even remember where they got the image from. And I think that's of the challenge. One thing we could talk about. But the other thing is I sense that they are, you know, "Okay, we'll just take it down. "Sorry, our bad." But that's not good enough, right, Jamie?

- That is correct. So when you get that dreaded letter or the cease and desist as lawyers like to call it. The first piece of advice and information that I have for you is don't ignore it. It just doesn't go away just because you took down the image in a lot of instances. But there are things that you can do. The most important thing to do though, is read it carefully. See what is being asked of you. In some instances, you are only being asked to take it down. Getty's a different story. They're a company that deals with their copyright differently but there are certain photographers or creators out there who aren't really concerned about getting money damages. They just wanna make sure that nobody is using their images in a way that they haven't permitted. So look at what the letter is asking for. Talk to an attorney. This is definitely one of those times where it is better to talk to an experienced copyright attorney because there are a lot of nuances to how to deal with these situations and a lot of questions that we can ask upfront to see if we could hopefully mitigate some of these damages and if in fact there is copyright infringement.

- You're exactly right. And I've also... Sorry, you can help not only agencies but also obviously brands with these challenges also, correct?

- Yeah, I mean, anybody who... You'd be surprised at the number of people who have been on the receiving end of a cease and desist, but yes, we've certainly assisted lots of different clients in lots of different areas who have received cease and desists.

- And I've heard horror stories about agencies and even companies buying the rights to something. And then they find out or a license to something they find out the person who issued them the license didn't truly have a license to license or something like that.

- Yes, that is actually one of the pitfalls of stock photography. Particularly the free stock photos. Is if somebody were to say upload a photo and they didn't actually have the ability to give that license and you use it thinking that you are in good shape, you still may have issues. My recommendation and one of the things that you asked... You mentioned in past is like, how do we even find the license? I know we deal in really high volume of photographs. I have clients who use a hundreds of photographs if at all possible my recommendation is even if you're not keeping a folder for every single photograph that you download. I mean, if you can, that's great because then you can just attach the license with that photograph. But at minimum, keep really good notes about where the photographs come from, have just like a repository of information so you can go back because sometimes these letters come for things that have been online for years. So the better you can keep your records, the better chance you have of potentially being able to mitigate some of those damages.

- And obviously I'm not an attorney or credentialed in any way to be one. So I certainly can't give legal advice. What we do at our agency is we do exactly what you're describing. Then we take it a step further and on the same page we put photo credit: and the website or the provider that we got it from oftentimes with a link to that website, just candidly. So we know if it ever comes up and we try and I don't think we do as good of a job of this is saving the license in the folder like you described. I'm a big advocate of using fewer sources for photos so that you have a one in three chance if you use three different providers of where you got the photo from originally. I think that's uber important. I'm also hearing about emails coming in from someone saying, "Hey, you're using this photo "on your website and I have the rights to those photos." And so we've just simply come up with a script that say, "Hey, we bought this. "We acquired the rights, the license of this photo "from this website, please take it up with them." Now I know that's not enough right of an argument, but I sense that some of these people are... I don't know what the right term is, but, you know, pretending that they own that photo and just trying to get quick money out of us or out of our clients. And so that's been our recommendation is to just respond very confidently. You know, we secured this, the license to this photo from this source, you should contact them if there's an issue with, you know, that.

- Yeah, I mean, it's... There's no harm in responding in that way. You can also ask for proof just because someone tells you and sends you a cease and desist and say that they are the copyright owner you should ask to see that copyright registration. I can't tell you the number of times where I've gotten a letter, or a client of mine has gotten a letter. We've reviewed the letter and we've looked at the copyright registration and realized that the photo in question isn't even covered by that copyright registration. That changes everything. There is a vast difference between getting a cease and desist for a photograph that is subject to an actual copyright registration versus just a photo that was taken and the, you know, the copyright is owned by somebody but they don't have a registration. There is a very big difference between the two of those and the potential for damages. So asking for more information about the copyright registration is another really good way to go. And sometimes they go away when you ask that question.

- We've had all of those go away when we've been able to respond in that way. And that doesn't mean it's gonna work every time but Jamie you're demonstrating the value of seeking legal advice from, you know, a qualified attorney, because what you're saying is exactly right. Like they may have some right to tell you that they wish you weren't using their photo but they may not have all the rights that they need to have you take it down. Or I don't wanna speak on your behalf, but that's what it sounds like is, you know, you may have an ability to kind of come back with a solid counter or check the authentification of the individual so.

- Yeah, I mean, they may not have the right to even... They may not have any rights at all in it 'cause it could be a scam like you're talking about.

- Right.

- Or if there is no copyright registration with the US copyright office, the owner of the copyright is just entitled to not less protection but they don't get the same automatic damages the way that some copyright owners do that have registrations. That's the real key 'cause with a copyright registration that's a really powerful tool for creators and owners of copyright. 'Cause that copyright registration will make them eligible for certain statutory damages, potentially attorney's fees and that's where those dollars really start to go up. So if you don't have a valid copyright registration you certainly may still have rights if you are in fact the owner of the copyright, but you may not be able to command the dollars that you would like to command that the owners of copyright registrations do.

- Gotcha. I'm thinking right now about our audience who is watching or listening to this, and I'm hoping they're thinking like I am that this is something that you... This episode is something you need to put in front of maybe not your entire team, but I just think about, you know, the entry level team, the junior level staff that hasn't yet had to address this or heard about this, or no one's educated them on this. And so I think that's really important. And I'm gonna lead with this idea that, you know, we try to bring this up on a regular basis when we're having kind of company-wide, agency-wide meetings or town halls. When we used to meet more regularly in a physical office we had a signup of a sample letter we've received and basically just kind of said, you know, there's no tolerance for not, you know, acquiring the right use and to document it. And we hope that's been helpful, but where I'm going with this is to say, I've heard people literally say and I know that this is gonna, you know, give you a heartburn, but yeah, I know I can't do that on our website but I can do it on our corporate social media account because I do it all the time. And so I want you to speak to that. And then I also want you to speak to the idea of, you know, means and viral photos and even viral videos. And what does all that mean? Because I don't think any practitioner who's not an attorney really knows a good answer to that.

- Yeah, so I wanna go back to your previous point about training. That's key. I do launch and learns for agencies and brands all the time who may not have in house lawyers or create trainings or even guidelines. I think it's really important to educate your staff because at the end of the day what they're doing is what you're doing. Even if you don't know, or it's up to the cracks and as agency owners or brand owners or individuals who, you know, are very high up in an organization, you can't be checking what everybody's doing, but you need to know that they are in fact educated properly. So I think training is a really great tool in order to be able to head some of this off. You know, the real answer and the easiest way to deal with this is, if you don't have permission directly to use it don't use it. So don't pluck it off of social media. Don't, just because you write repost and you give attribution that does not mean that you have permission. So I think a lot of people think, "Oh I tagged the photographer." Attribution is not a defense to copyright infringement. And that is something that I stress over and over again. So you do have to be careful, you know, there's a reason why Instagram, for example does not let you repost a static post on your feed. You could share it in your stories and if you're doing it within the confines of what Instagram lets you do, that's fine. But I see it all the time these small businesses will just see something they like, they'll copy and paste it and post it on their own feed and they'll just write repost or hashtag repost. And it just... It makes me like, "Ah, don't do that." So that's just not a great practice. We should be creating our own content.

- So I love that. And that's very helpful. So do you sense that and I'll call it enforcement you probably have a better word for it but policing or monitoring. Do you think that social media channels will start to be monitored more than they are today for this? Or is it happening now and it just hasn't, you know, entered my domain or my sphere of connections?

- Yeah, so the social media channels are most likely never going to do their own monitoring because they have, you know, the section 230 platform immunity, which basically means that they're not responsible for what... In essence what people post on their platforms unless they're told there's a problem. But, people can utilize DMCA take down notices which is digital millennium copyright act and all the social media channels and every single web host they have pretty easy ways for you to fill out those forms yourself. I do see high uses of DMCA take down notices and the platforms are typically more inclined to just pull them down because it's just easier and then they're not viable. And so I do see a lot of that sort of self policing. There's no... Usually no money. I mean, no money is changing hands with the DMCA take down notice, but it does achieve, you know, getting your information taken down if you are somebody who has had their content infringed upon. So I think, and I know that entities are certainly viewing social media as much as they're viewing websites. The ones that are Getty for example is a good example. I mean, they are looking at all of it. So I don't think necessarily just because it's been done in the past, that it will be okay.

- Nice, okay, okay. Well Jamie, we've reached about the halfway point of our time together. And so we're gonna take a quick break and come right back with more. Before we do that, I wanna say thank you to our presenting ReviewMaxer. Without them, this podcast or vodcast, however you're watching may not be available. So we wanna thank them for their sponsorship of the show.

- [Narrator] You're listening to On Top of PR with your host, Jason Mudd. Jason is a trusted advisor to some of America's most admired and fastest growing brands. He is the managing partner at AXIA Public Relations a PR agency that guides news, social and web strategies for national companies. And now back to the show.

- So welcome back. I'm here with Jamie and Jamie just finished telling us that attribution is not a defense for what was it again?

- Copyright infringement.

- Copyright infringement. I love that. And I think all of us as marketers in public relations, corporate communicators, we should have that on the tip of our tongue and be mindful of that all the time.

- Yeah, it's just important to note that, you know, just because you give attribution or you tag the photographer does not necessarily mean that that makes it okay for you to use their image. Now, sometimes with a license, that's all you need to do. You know, oftentimes, and we see this in the news a lot where someone will take a photograph and a news outlet will say, "Hey, can we use this photo? "We're gonna run it here." And they'll say, "Yeah," with attribution. And so that's your license, but weren't given permission. That's the key.

- Yeah.

- is gonna fix it.

- And the example you gave was pre-negotiated, pre-agreed upon, right? So it's not like a spontaneous or just, "Oh, I'll just do this real quick." You're not winging it. You had that consensus upfront.

- So.

- Yeah.

- Here's a common one is AXIA for example we're PR agency, we get our clients in the news. So we have monitoring services that then collect that news clip, whether that's on the web or on a broadcast or video television, for example or it might be in a magazine, right? And the client is thrilled. And so they wanna take that interview or that feature story. And they wanna put on their website. They wanna distribute it via email blast. They want to, you know, blog about it or post it on social media. They come to me and say, "Hey, did you get that permission?" And first of all, I'm glad they asked if we did but the answer is, no, we did not. You know, that it belongs to them. And especially as you know if you even wrote an article for them, it belongs to them. Even though you wrote it, even though you didn't get paid for it, unless you negotiated something else in advance. So, talk to the brands who, you know, just had a nice spot maybe on a Good Morning America or CNBC, or with their CEO being interviewed. They clipped it 'cause they have a clipping service or PR agency like us that sent it to them. Why... I'm gonna... I'm not even gonna ask a bias question. They wanna put on their website. Why shouldn't they?

- I mean, I think it really just depends on the arrangement that you have. So you just... There's no blanket rule. Like I can't... It would just depend on what that looked like. A lot of times people will just ask for those clips and that's really the best way to go. I mean, anytime, frankly, I appear anywhere, I'm always like, "Hey, can I grab a clip from you "so that I can use it?" And if I get the, yes, we're good to go. So it's... That's really the best case scenario I think is to just say, you know, you see this I'll tell you on websites where you see a whole bunch of logos as appeared in. So if I was quoted in the New York Times I'm not allowed to put the New York Times Logo on my website without asking for permission. People don't realize that most people don't follow that. I mean, you're gonna see it all the time and it happens. And in a lot of cases, these organizations let it happen. But I will tell you that I had a client who got an email from a news outlet. Not the Times. I'm not gonna say who it was, but saying, take us down. You don't have permission even though you wrote an article for us. So you just have to be careful.

- It's problematic enough for us as PR pros because we're already debating. Should we even let other media outlets know that we've been in the New York Times because maybe they won't cover our story because the New York Times has already covered it apparently. And so, but then there's also the herd mentality of, "Well, if we have the New York Times there, "maybe that'll turn on the LA Times "or someone else to covering us "and know that we're credible." So we have these debates internally all the time and I bet the best answer is, well, do we even have permission to put a logo up there, period, right? And then that's where the conversation might end. Let me... I'll make up a hypothetical situation that I just thought of Jamie, which is, let's say, you know, the producer at, you know, Fox and Friends, for example or pick your show of choice said, "Yeah, absolutely Jason, you can put this on your website "you know, or your client's website. "We have no issue with that." And then two years later that producer's long gone and we get a cease and desist letter or a demand letter from the legal department of that same, you know, network. What's our situation there look like?

- You'd really wanna have that in an email at least.

- Yeah, no, no, no. We have it in an email, right?

- Well, if you have it in an email, you know, emails can be binding agreements. So that's not ideal. So as soon as I say that, everyone's like, "Oh, I can do my contracts over email." Please don't do your contracts over email. However, in many instances particularly these where you're not going to have like a signed license written.

- Right, right.

- Having that email is at least helpful. And it'll depend on what the email says. And, you know, I'm giving the very lawyerly it depends answer 'cause it's hard to answer hypotheticals. But in that instance, having the email is a great thing. And then I've had those cases where we've said, "Hey, you know, the so-and-so gave us this permission "and here's the email." And sometimes they'll say, "You know what? "Take it down. "We don't wanna give you that permission anymore "but it'll go away if you take it down."

- Okay. So Jamie, believe it or not, our time is quickly expiring. I've really enjoyed this conversation. I think we covered everything I wanted to accomplish on this first interview and episode with you. I hope you would be willing to come back again in the future, but if people who are listening or are watching this now say, "Man, Jamie is pretty smart. "I'm glad that Jason brought her on the show. "I'd like to connect with her. "I've got a legal matter or like you and I first connected. "I just wanna have you in my network. "So, when and if I have a legal need "that you're saved in my phone kind of thing." So Jamie, how do people who are or how do our audience best get in touch with you either, you know, with a specific legal matter or just to stay connected with you?

- Sure, so our website is hashtags-legal.com. You can find us there. We're gonna create a special landing page. So you can go to our website backslash on top of PR. You can also find us at Instagram which is my favorite social media channel of choice which is hashtag_legal. And if you wanna reach me, you can email me directly. Jamie is J-A-M-I-E @hashtags-legal.com.

- Okay, so that special landing page is going to be hashtag-legal.com/ontopofPR?

- Yep.

- Awesome. Okay, great, thank you. Yeah, I'm sure our audience would love to connect with you. I've enjoyed this conversation. And as I mentioned earlier, I really value having, you know, smart, legal counsel in my corner. So when we have something or we need something we always have a trusted advisor to lean on and walk us through the situation, ideally preemptively. Right, but sometimes in reaction to something that just doesn't seem right or that we need to be considering our risk or liability. So, Jamie, thank you for being here. Yeah, this has been a real pleasure.

- Thank you.

- All right, that ends our show. I wanna thank our guest, Jamie for being here. What a great episode. I love it. When I'm able to introduce you to people in the marketplace who impress me and I'm sure they're also impressing you. And if you liked what you heard today, share this episode with your team, make sure you're protected from, you know, improper use. And also we'd love it if you would leave us a review or subscribe if you haven't already done that.

- [Narrator] This is Ben On Top of PR with Jason Mudd presented by ReviewMaxer.