Protect your practice from copyright infringement

Doctors of optometry take measures to protect themselves and their practices in a number of ways, including malpractice insurance and cyber security software. But doctors of optometry should also be mindful of the copyright protections attached to the photos they use on their websites or in printed materials.

Copyright infringement, which involves using works protected by copyright laws without permission, can lead to the infringer being threatened with a lawsuit.

Michael J. Stokes, J.D., AOA's general counsel, explains that it is becoming increasingly common for owners of websites to get "caught" violating copyrights.

"Lots of individuals and small businesses are unknowingly using copyrighted images without permission, and technology has made it very easy to detect such uses. Companies that own a large amount of images employ software that automatically searches the web for unauthorized uses of their images. If they detect an unauthorized use, they will typically send out a letter demanding thousands of dollars in payment for the unauthorized use," says Stokes.

He also adds that companies, referred to as "copyright trolls," buy large amounts of copyrighted materials for the sole purpose of going after infringing users.

What happens if you receive a letter alleging unauthorized use of a photo? Stokes says, first and foremost, don't ignore it, and follow these suggestions:

• Check to see if the image is in fact on your site and where it came from. If someone simply “grabbed” the image off the web, it’s very possible that use constitutes copyright infringement.
• If the monetary demand is large, it makes sense to get a lawyer involved.
• If you decide to respond on your own, many experts recommend that you investigate what similar images on paid sites cost and respond by offering to pay that amount. In many cases, similar images will be available for commercial use for less than $100. If the demand letter does not include evidence that the sender in fact owns the images in question, ask to see proof. The goal is to get the ultimate settlement amount closer to the market value for the image, rather than the inflated amount in the demand letter, and to put the matter to rest.
• Experts further recommend that you never admit to any liability. Simply state that you are offering to pay to make the matter go away, even though you do not agree you have done anything wrong. You don’t want to weaken your position in the event the purported copyright owner does actually file a lawsuit.
• Check with your insurance broker to see if your insurance package includes coverage for copyright infringement, or better yet, if you have a dedicated “media liability” policy. If so, be sure to send formal notice of a potential claim to the insurance carrier if your policy requires it.

Stokes also notes that when searching for photos to use, doctors and their staff should assume that all images have copyright protection, unless it can be established otherwise.

"Materials that have no copyright protection are known as 'public domain' materials. The two most common types of public domain materials are those published by the U.S. government and very old materials for which copyright protection has expired. Also, some contemporary creators purposely place their works in the public domain. There are sources of copyrighted images on the web that a person can use without paying, but in many cases permission for use must still be acquired and in most cases attribution given to the creator of the image," says Stokes.

Practical tips for avoiding copyright infringement

Stokes provides tips and resources that will keep practitioners clear of copyright issues—whether proactively or retroactively, as some may need to go back and review their photo assets.

• If you use—or used—an outside vendor to create your website or printed materials, the contract with the vendor should indicate that the vendor will only use material that it has rights to (and is able to transfer that right to you). If the contract doesn’t say, check with the vendor.
• If you built your own website or created your own printed materials, ask yourself these questions: Did you get the images from a fee-based image bank collection? Did you take the pictures yourself or get them from a person who took them (i.e., friend or colleague, or a photographer whom you paid)? If images were not obtained from a paid image bank, were you careful to ensure they were public domain images or images that were offered under a license that allowed you to use it on a commercial website? Do you have adequate documentation of the permissions granted to you?
• Visit sites—such as Wikimedia Commons—that have a collection of public domain photos. Check the terms of the license, which are usually described on the Web page with the image or referred to using a reference to a Creative Commons license. “CC0 1.0” is the designation that Creative Commons gives to public domain photos. An “Attribution CC BY” license means that while the image is not in the public domain, you can use the image commercially as long as you give credit to the owner.
• There is no guarantee that an image that is designated as “public domain” is in fact in the public domain, so the safest option is to purchase images from a reputable image bank website. Images are available for a per-item fee or by subscription and are often reasonably priced.