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Copyright Conundrums – By Rob Marshall

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A low-down picture of a fast-moving car is popular among garage websites. Producing such
a photograph is difficult and expensive. Like all images, it belongs to somebody. It is best to ask for permission, should you be unable to take your own shot like this. (Picture provided by Ford of Britain Press Office for editorial use, incidentally!) 

COPYRIGHT TENDS TO BE MISUNDERSTOOD BY THE GARAGE TRADE, WHICH IS WHY ROB MARSHALL URGES AFTERMARKET BUSINESSES TO BE SAVVIER AND REVIEW ANY PROMOTIONAL MATERIAL FOR STOLEN CONTENT, BEFORE THEY GET CAUGHT. 

Being just one of the many complex legal areas of intellectual property (IP), one of copyright’s main aims is to protect the financial interest of the person that creates an original piece of work. While the Internet has seen an explosion of material being both used and shared, copyright’s legal protection has not diminished, although it can be argued that it is infringed more widely. However, enforcement is on the increase, especially when stolen content is used openly to support a business. Is yours one of them? 

Breaching somebody else’s copyright could cause you (and/or your business) serious issues, due to the legal rights afforded to the original creator. For the sake of simplicity, this article will focus mainly on ‘artistic works’ (specifically, images) in the context of promoting a vehicle repair business. 

You might ask, what harm can be done, by grabbing a nice picture from Google Images, for example, and pasting it on your website? It is not as though anybody is being hurt and, in any case, the item is in the public domain, which means that it is free? Professional photographers and their lawyers would argue differently. Considering that the picture in question might have cost hundreds, or even thousands, of pounds to create, you have not only taken someone else’s asset but also the owner/copyright holder has been deprived of income. Material on the Internet should not be regarded as free for the taking, especially for a commercial business, but more sophisticated search tools mean that copyright holders are fighting back. 

© BASICS 

Copyright infringement is both a civil and a criminal offence which means it can give rise to civil compensatory damages and, in some extreme cases, a fine or even a prison sentence. While the British interpretation is covered by the Copyright, Designs and Patents Act 1988, the UK is one of over 160 countries that signed-up to the Berne Convention that establishes common agreements between nations. Therefore, copyright can be defended between borders – so, a lawyer’s letter from North America, for example, could be enforced in the UK. 

Unlike many other IP rights (such as trademarks and patents, which are not part of this feature), copyright is automatic. If you take a photograph, write an original advice article/blog, publish a video, or even design a website, you do not have to assert your copyright with the symbol ©, even though some specialist solicitors argue it is a good idea. As the ‘expression’ has been fixed (on paper, or on the Internet), copyright
applies immediately. For this reason, you cannot copyright a spoken idea, the expression must be ‘fixed’. This is important because every picture, article, video, music track, and more, has copyright implications, which you must consider. 

Using a photograph as an example of an original artistic work, if you took the photo (even if it was on someone else’s camera), the copyright is yours. You can do with the image what you wish. You can sell, or gift, the copyright to someone else, or use the copyright to create a licence. This is how certain stock photography websites operate, they obtain a licence from the copyright holder (usually the photographer) that allows the picture to be used, typically for set reasons and fixed periods of time, for a fee, a proportion of which goes to the owner. While there are some websites that offer ‘free’ images, do not confuse ‘Royalty-Free’ with ‘Copyright-Free’. There is no such thing as something being free of copyright, unless the copyright expires, which tends to be 70 years after the death of the creator, or photographer, in this case. 

The digital age makes it very easy to take bad photographs but you must not steal decent ones. This one was shot and lit professionally but photographers are not always expensive. The alternative is to brush-up on your camera skills and buy some decent kit.

If an employee takes a picture as part of work duties, copyright is assigned to the employer. Yet, the duration of copyright is linked to the employee, which expires also 70 years after his/ her death. Consider the ‘onion effect’ too; copyright is multi- layered. For example, you may decide to use a piece of classical music in a video, because the composition is old enough for the copyright to have expired, but it is easy to forget that the later orchestral performance of the melody would have its own copyright. Should you decide to play it safe and use a video camcorder in your workshop, turn off the radio. Unintentional rebroadcasting can breach copyright in the same way as laying a sound track of Ariana Grande’s latest warbling over a video that you shot of a timing belt change. 

Additionally, you cannot use someone else’s photograph and doctor it slightly, claiming it to be your own. Using a car manufacturer’s press image without permission, Photoshopping out the badge and changing the car’s paint colour would not be a defence, for example. 

Some exceptions to copyright exist, when permission is not required. These include non-commercial uses for teaching, recording a broadcast for later domestic viewing, review, or news reporting (a commercial blog is unlikely to be sufficient to justify an exemption) but none of these are likely to be applicable to commercial aftermarket motor trade activities, unfortunately. 

BEING CAUGHT OUT 

It is easy to overlook copyright implications in the excitement of setting up your own website, until an unexpected letter, e-mail or telephone call arrives from either the copyright owner or a solicitor. Craig Townsend built his own professional website, keysperformanceparts.co.uk, selling aftermarket accessories and he told us, “I used Google to see which pictures were available and relevant to a section of my site that informed readers about how to wash a car correctly but, when I noticed that certain images were copyrighted, I did not use them.” 

Unfortunately, Craig did not realise that every image is owned by somebody (unless the copyright has expired) and he chose a picture accidentally that infringed a professional photographer’s copyright. A similar incident occurred at the family-run AutoCare Morley of Leeds, where the company owner and website creator, Keith Simpson explained, “I was very careful to ensure that I did not infringe anyone’s copyright, when I created our company website. I used Google’s advanced image search facility and chose images only that did not have a licence. Even then, I ended up using someone else’s picture unintentionally. Thankfully, the situation ended amicably and the photographer and me came to a mutually-beneficial agreement.” 

Joshua Schuermann of Briffa Solicitors, an IP specialist, explained that, 

“Although it may not be easy to determine whether a copyright holder has allowed his pictures to be used, this does not mean that you are free to take it and use it. If you can’t identify the copyright owner, it is safer to refrain from using the picture altogether – always assume the image belongs to someone.” 

In these cases, an amicable agreement was reached. Yet, things are not always that simple, as Mr Schuermann elucidated, 

“If you are accused of copyright infringement, simply removing the images does not end the dispute. You may still be liable to pay damages for the time the images were displayed on your site. 

Such disputes can often be resolved by communicating with the other party, reaching a settlement by mutual agreement is always preferable to formal legal action.” 

Yet, do not presume that the threat of action is a rarity. Certain organisations, including image library websites, are targeting SMEs specifically using copyright ‘bots’ that detect unauthorised use of pictures and send copyright infringement letters to the person/organisation responsible. The resultant claims are known to total several thousands of Pounds per image. In such cases, it would be the website owner who is liable, even if someone else provided the image, such as a web design company. It has been known also for company directors to be held legally liable. 

Press pictures, i.e. those intended to be used solely by the media, are protected also by copyright, many of which state specifically that they should not be used for promotional purposes. Therefore, using a press image on your garage’s website would breach copyright, unless you have the relevant copyright owner’s permission. However, photographing an actual example of a motor car outside of your garage is unlikely to create issues from a copyright perspective. 

   

This timing belt photograph may have been zoomed into, with text placed over it, but it is clearly a copy of the original image. (Copyright exemption to show these webpages declared under ‘fair dealing’ for review.)

PROTECTING YOURSELF 

Should you be about to build your own website to promote your business, ensure that you keep records that detail the origins of the pictures used. Should you use a picture library and buy a licence, keep records of any expiry dates – especially as content can remain on websites for many years, even if archived. Continuing to use an image after expiry of the licence triggers the same liability as a standard copyright infringement. 

If you engage a professional photographer, always enquire about copyright, or review the relevant clause(s) in the terms of business. Most photographers will seek to retain ownership of the copyright in the photographs they take, even if they are commissioned and paid to create these images for you. It’s vital you understand the terms of the licence granted to you and check whether there are any issues with the duration, territory or exclusivity of the licence. It is possible that you are granted a licence to use a picture for a website only, use in a brochure may prompt extra fees. The same applies to website designers; if your designer retains the copyright to a unique design, you may not be able to use another designer, without the whole site being recreated again. In many cases, it is simpler, cheaper 

and safer to take the picture, or even design a website, yourself. If copyright is assigned to you, or your business, this will need to be in writing but expect to pay a higher rate. 

Rather than look upon copyright as a potential hindrance, consider that it can protect the independent repairer, too. If you spend considerable resources developing an impressive website, why should somebody else’s business take the content and compete against you? We have seen complete technical advice blogs being cut-and-pasted verbatim on other sites, for example. Where your copyrighted material is being used without your consent, you may be entitled to financial compensation, in addition to securing the immediate removal of the infringing material. As in all legal cases, should you need advice, be wary of self-professed copyright ‘armchair experts’ on Internet forums, consult a specialist solicitor for that advice. 

With thanks to Briffa Legal Ltd.
02072 886 003 – www.briffa.com – https://twitter.com/briffalegal 

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