Many business owners will utilize the services of a professional designer to create the graphics used on their website or social media accounts. The business owner obviously counts on the graphic designer to use files or photos that they’ve properly obtained a license for.
But what happens if a graphic designer was not honest or made a mistake about how their source files were obtained? Especially if it’s discovered that the designer used a file that infringes on someone else’s copyright.
Unfortunately, this situation happens more often than you may think. The legal owner of the image may start by taking action against the business owner because that is the person who is publicly using the image in question. Normally this is achieved by sending a Cease-and-Desist letter and demanding that the image be taken down.
With the letter, the legal owner of the image may usually include a photo or screenshot of their work. If it’s clear that the image was used without permission, the business owner will want to remove the image from their website, social media accounts, and other marketing material as soon as possible.
The owner of the image may also take legal action against the business owner who is using it without permission. If this occurs, the business owner will then need to take simultaneous legal action against the designer who sold them the offending design. Obviously, this can be messy and expensive to resolve.
Prevent Copyright Infringement from Happening in The First Place
If you plan to utilize the services of a graphic designer, you’ll want to take steps to prevent copyright infringement from happening in the first place. To start, ask where they obtain the source files for their work. Find out if they have a subscription to a stock photo database such as Adobe Stock and if they retain licenses to all images used. You’ll want to ensure that you can provide proof of a license to anyone that may accuse you of copyright infringement in the future and knowing that your designer has—and retains this information—is key.
You will want to include a provision in your contract with the graphic designer that they represent and warrant that use of their work “does not and will not violate or infringe upon the intellectual property right or any other right whatsoever of any person, or other entity.” Additionally, you will want the contract to state that the graphic designer agrees to “defend, indemnify, and hold harmless for any breach of the agreement.”
For works of art that will be prominently used online or on other forms of media such as on TV, you may also want to work with a copyright attorney to perform a formal search. Your attorney will compare your art to work that’s already in existence to ensure that you are not infringing on someone else’s rights. The effort you put into a formal review and search in the beginning can keep you out of court and save you thousands of dollars if you wind up using a design that’s been stolen from someone else!
The bottom line is that preventing copyright infringement is your responsibility, even if you are using the services of a graphic designer. However, by following the tips mentioned above, you can help reduce the chance that you wind up on the offending end of a copyright infringement lawsuit. If you have additional questions or you need assistance performing a copyright search, please schedule a time to meet with one of our attorneys by using our Calendly link here.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice.