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Social media increases infringement risk for photographs

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Using a photograph taken by someone else, particularly one that is distributed via social media, is a perilous path, as social media personality Khloé Kardashian recently discovered when she was slapped with a copyright infringement lawsuit.

Ms. Kardashian was sued for copyright infringement in California Central District Court in Los Angeles in April by a photography firm that alleges she used a photo it owned on her Instagram account without obtaining the proper permissions.

This type of lawsuit is becoming more frequent as the internet and social media have made it easier to find and distribute photographs, copyright infringement experts say.

The first layer of protection is the Digital Millennium Copyright Act, which was implemented in 1998, and provides safe harbor provisions for websites such as YouTube and Facebook that host content, legal experts say. Once these companies are notified that their sites are hosting copyrighted material, they must follow processes to remove the offending material as promptly as possible. If they fail to do so, they could lose safe harbor protection.

A critical risk management step is for companies to make sure their marketing, advertising and other uses of photography are done only after securing the appropriate licenses, experts say. If companies are caught using copyrighted images, they will at minimum pay retrospective license fees, but they also can be sued for damages.

“The expense almost always is in the defense,” said Deanna Cook, Denver-based claims consultant with Lockton Cos. L.L.C. “I’ve seen photography copyright cases go above $10 million as far as defense costs, but the actual settlements usually aren’t that big.”

“Companies need to have very clear policies that prohibit snagging and using images and other content on the internet,” said Coe Ramsey, an entertainment lawyer with Brooks, Pierce, McLendon, Humphrey & Leonard L.L.P. in Raleigh, North Carolina. “That’s dangerous — you don’t want to be doing that.”