Legal Question in Intellectual Property in Washington

This is a fair use and copyright question:

A Canadian company sent a cease and desist letter to me (in Washington State, USA) for allegedly using their copyrighted image on my website, included a bill for nearly $10,000 US, and threaten a law suit if unpaid.

The image used was a small size and likely taken from a photo CD that the company mailed me for free. It was my understanding that the company gave away their free images to use and entice you to buy larger versions of it or to demonstrate their quality and to buy other images. Is it legal for this company to 'bait' people into using their images, by sending them out to people free on CDs, but then they collect money on it if used on a website?

Does it matter how long the photo was online? Does it strengthen/weaken my case the fact that it has been for x years and they choose to now have an issue with it? I'm also not 100% sure I got it from the free photo CD- it's possible it came from an archive at the university I attended, or possible it came from a purchased photo CD at a previous employer- do these other possibilities strengthen/weaken my case?

The image was used on a website was a student project (as part of a class) which sold a product, but never really took off. The image was not essential to the website and could have been a variety of other free images substituted for it. The project never made a profit. Had I known they would have had an issue of course I would have used a different image. The image is now removed.

Do you think the use of this image on the website fair use?

Thanks for your input!


Asked on 8/17/11, 7:12 pm

1 Answer from Attorneys
Kevin B. Murphy Franchise Foundations, APC

As a Franchise Attorney I can say the following. All creative works are automatically protected by copyright law, but registered works are afforded much greater protection. Copyright law sets statutory damages (damages that do not have to be proven) for unauthorized use of images. These generally range from $1,000 up to $150,000 per infringement (each use of each image). If the copyright is registered, then you can also be liable for attorney�s fees - which can be substantial. Ignoring their demand is not a good idea as they will likely get their attorney involved to pursue legal action - and the price tag will go up dramatically. Using copyrighted images on a website is not considered fair use, and it doesn't matter where you found it. All that matters is you used their copyrighted image. You should consult with a good intellectual property or franchise attorney for specific advice and to help you cut the best deal possible under the circumstances.

Mr. Franchise - Kevin B. Murphy, B.S., M.B.A., J.D.

Franchise Foundations, a Professional Corporation

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Answered on 8/18/11, 6:38 am


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