Regardless of your religion, Christmas carols seem ubiquitous in December–at least they were before the pandemic. Starting at least by the day after Thanksgiving, every store, restaurant, shopping mall, and radio station seems to want to get listeners into the holiday spirit. And that includes Christmas carols.
Many say the oldest Christmas carol is Adeste Fideles (“O Come, All Ye Faithful” in English), but they disagree on the music’s origin. In 1947, Dom John Stephan wrote an entire book on the origin of that one carol.
Over time, the Latin lyrics have been attributed to numerous people, including 13th-century scholar St. Bonaventura, the Cistercian order of monks, and people in various countries. The carol was known to some as “The Portuguese Hymn,” but it also appeared in French and German hymn books. Several musicians have been given credit for the music. Dom Stephan concludes that the most likely source was 18th-century musician and Catholic layperson John Francis Wade, who also was instrumental (no pun intended) in reviving the popularity of plainchant.
Like people who sing hymns without knowing their origins, some people use photos and artwork in presentations and on their websites without knowing its origin. A website photo may date to whoever originally designed the website, with the photo's source and whether a license fee, being long forgotten. Or they obtained the image from Creative Commons and assumed they could use it without paying a fee.
Many people don’t realize that even “free” artwork may require attribution of the source. And someone who uses the artwork for commercial purposes may have to pay a license fee.
Recently, I was targeted by a scammer who banked on my being ignorant of the source of my law firm’s artwork and whether license fees were paid. I wasn’t a good mark because I knew my law firm has an iStockPhoto account and has paid license fees on all images it uses. However, many business owners may not have such good records or recognize the scam.
This article discusses best practices for obtaining licenses and maintaining records of those licenses and what to do if you receive a demand letter (scam or otherwise).
The Scam
The message came via the contact form on my law firm's website. Although I doubt the name given was real, I have changed it to protect the guilty. I also have deleted the link in the email, which I expect would have led me to malware had I clicked on it. Otherwise, the email is unchanged:
This is Natalie and I am a licensed photographer and illustrator.
I was puzzled, putting it lightly, when I saw my images at your web-site. If you use a copyrighted image without an owner’s permission, you should be aware that you could be sued by the owner.
It’s not legal to use stolen images and it’s so wicked!
Check out this document with the links to my images you used at whitmanlegalsolutions.com and my earlier publications to get the evidence of my ownership.
Download it now and check this out for yourself:
[link to apparent google drive document was here]
If you don’t remove the images mentioned in the document above within the next couple of days, I’ll file a to your hosting provider stating that my copyrights have been severely infringed and I am trying to protect my intellectual property.
And if it doesn’t help, for damn sure I am going to report and sue you! And I will not bother myself to let you know of it in advance.
How I Knew It Was a Scam
I quickly figured out the email was a scam. Some clues were
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The letter has grammatical mistakes.
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There is no such thing as a “licensed photographer and illustrator.
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Most demand letters come from a company that licenses images, not from the artist.
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The email did not reference the images that supposedly violated copyright law.
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The email asks that I click on a link to see what images the sender claimed she owned.
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The sender did not make a demand for a license fee.
Knowing that nothing good comes from clicking on a link from an unknown sender, I did not click on the link. However, I have no doubt that had I done so, malware would have been downloaded to my computer.
I have seen legitimate demand letters clients received for copyright violations due to website images and photos. A legitimate letter will:
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Come from a company (not an individual) claiming to have the right to license the image. The letters I have seen have come from Getty Images or one of its affiliates.
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Include a description or copy of the infringing image. The legitimate companies have image recognition bots that scour the Internet looking for copyright violations. It is easy for them to give you a copy of the infringing image.
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Demand payment of a huge license fee, which frequently is 50 times the photo's actual license fee.
A legitimate letter is all about money, not asking the recipient to download a file.
What to Do if You Receive a Demand Letter from a “Legitimate” Source
By now, everyone should know to deal with a scam letter by ignoring it and, most importantly, NOT CLICKING ON THE LINK. But most people panic when they receive a letter demanding that they pay $1,000 or more because a photo on their website violates someone’s copyright.
The letter recipient should immediately confirm 1) that the image is on their website and 2) that it was not licensed. If an image was used without a license or that it can’t be determined whether a license was purchased, the recipient should remove the image from their website.
The recipient also should review their entire website and confirm all images are licensed. Any unlicensed images should be removed and replaced with similar, licensed images, and keep track of the license fees.
After taking down any unlicensed images, the letter recipient should attempt to determine whether the letter is legitimate. Remember, most copyright owners are interested in making money from their work, so a letter without a money demand should automatically be suspect. Getty Images frequently sends demand letters.
Just because the letter is from a legitimate source doesn’t mean the recipient should pay the amount demanded. Before any money changes hands, the recipient should require that the sender prove it owns the copyright. There have been claims of legitimate companies trying to collect royalties for copyrights it does not own. Paying a royalty to a company that doesn’t own the copyright doesn’t eliminate any license issues.
Rarely should the letter recipient pay the usually excessive amount in the demand letter. Instead, the letter recipient should attempt to identify the image it used without a license on the website for Getty, iStock, or another image licensing company and note the license fee. That’s the fair market value of the image license.
The letter recipient should offer to pay the image license’s fair market value, at least at first. If the letter recipient agrees to pay any amount, it should receive a full release from the copyright owner.
Look at Your Licenses
Image licenses are not all made alike, so everyone should know their license terms before using an image to confirm that the license allows them to use the image as they intend. Anyone using an image on a business website, presentation, or marketing collateral should confirm that the license allows them to use the image for commercial purposes.
Many licenses prohibit the use of images on items for resale. The licensee can use the image in its business but can’t sell products containing the image (such as t-shirts or mugs, or posters) to others. Even licenses that allow the use of the image for resale may limit the number of uses or types of uses.
Many people think that if they obtain their image from Creative Commons, they need not pay a license fee. Creative Commons content has several types of licenses. Some may allow use without paying a license fee but require that the person using the image give attribution. Other licenses allow the licensee to use the image only exactly as it appears on Creative Commons. Modifying such an image also might breach the license.
Another pitfall can be headshots. Many people think that they can use a picture of themselves freely without paying a license fee. Frequently, that is the case, but sometimes, the photographer owns the copyright. However, when hiring a photographer to take the headshot, everyone should require that the photographer assign any copyright in the photographs to the photo subject.
Business owners should be sure that the license is in the correct name. Sometimes, a business owner may purchase a license under their personal name. Or a business may purchase a license for use by its subsidiary. Depending upon how the license reads, having the license in a different name than the company using the image could lead to a copyright violation claim.
Finally, business owners should keep good license records. One of my clients received a license fee demand letter for images on their website. The website had been designed years earlier, and the images hadn’t been changed since. It’s possible someone purchased a license, but the business had no record of it. Due to the lack of records, the client was vulnerable to a copyright violation claim.
Protect Yourself
It may no longer matter who wrote Adeste Fideles. After all, both the words and the music are old enough to be in the public domain.
However, it does matter who created the images on a business’s website and whether the business has the right to use them. Every business should diligently track images used in the business to assure that the business has the required licenses. As for the fake scam letter I received, business should be training employees to never click on an email link from an unknown source.
This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.
