So, I get this email from a FLCW the other day: “I’m embarrassed to say, I have several work samples posted on my website that I didn’t get permission from the clients to use. I realize this is not good business. Do you get permission from every client, even if the piece was posted/published in the public realm?”
My reply? No. Call me crazy, but in my estimation AND experience, this is a non-issue. If I do a B2B or B2C project (virtually all my work) for a company – by definition, one created for public dissemination – I can display it in my online portfolio.
Only once in 15 years – many years ago – did I ever ask permission to use a piece. I was told I couldn’t and given no good reason for denying my request (the pieces were part of a customer newsletter!). So being, I suppose, a bit anti-establishment, what I took away from that unsatisfying encounter was NOT that I needed to ask each time, but rather that I’d never ask again. And knock on wood, in 15 years, I’ve never had a problem.
Sure, if it’s internal (i.e., proprietary and potentially sensitive, though not all internal communication is proprietary), you shouldn’t post those unless you “sanitize” the sample of all sensitive/identifying language, but you’ll know what those situations are.
As I found out, if you ask permission, there’ll be those clients whose anal legal departments have to justify their existences by making grand proclamations about what you can and cannot do with something you created for them. And for no good or logical reason other than they can. Why bother, when chances are literally nil that they’re ever going to know or care that you’ve posted them?
And what’s the worst-case scenario? They tell you to take it down. Think they’ll slap you with a multi-million-dollar lawsuit for posting a sample thousands of people saw? Not a chance. If they decide to be a—-oles about it, they’ll start with a simple “take it down” request. And you take it down. End of story.
She wrote back that she was about to met with an IP (intellectual property) attorney and would ask about it. Straining to not be a smartass, I wrote: “What do you think an IP attorney is going to tell you? Their very professional existence is predicated on coming up with every conceivable thing that could possibly EVER go wrong in a million years. That’s what they’re paid to do. Which, in our case, has virtually no relation to reality.”
She reports back later: “As you suspected, technically we are supposed to get permission from our clients to use their copyrighted material on our websites. It gets stickier if private citizens’ names are used (e.g., in testimonials) as that gets into publicity law which is akin to privacy law.
Same thing for employees featured in the pieces; they would require separate permissions in addition to the company permission. She recommends a form or a letter asking permission to host the pieces on my website to promote my own portfolio.”
There you have it. Sigh. I suppose this is where I’m supposed to say, “Well, defer to legal counsel.” But you know? I’m just not worried about it. At all. If there was ever a more textbook case of the old saying, “Easier to ask forgiveness than permission” this would be it. So, let me have it. Here’s your chance to tell me I’m full of it.
Do you ask permission before posting samples on your web site?
If you don’t, have you ever had a serious issue arise (aside from “take it down” requests)?
What’s your policy on the issue?
That’s pretty wild, Peter!
Knock on wood, but I’ve had samples up for 15+ years, and many have pics (though I don’t know their origin) and haven’t heard a peep from anyone about it.
Though even if someone did hear from them, wouldn’t it simply be a matter of taking it down? And how can they come after you when you’re simply showing an already produced piece, which includes a picture for which the toll has already been paid for that piece?
Doesn’t intent count for anything (as in, simply displaying a piece you wrote in a portfolio vs. reusing a picture you haven’t paid for, in a different project)? I’m probably showing my ignorance here, but sheesh, in cases like that, these people need to get a life… 😉
PB
Does anyone have experience in posting logos of their clients? I know big agencies do it, and I have a feeling that not all ask for permission to do so, because getting permission usually involves long waits and hurdles from legal depts.
Jim – I wouldn’t worry about logos…as long as it’s in a positive light, it’s just free publicity for them
Peter, don’t get me started on Getty!
This is actually a major money-spinner for them, prompted no doubt by the decline in revenues of stock photography (given that digital cameras mean almost anyone can take a decent picture). Time was when they would simply ask you to take them down. Now they demand four figure sums and make heavy legal threats if you don’t pay up.
More on this is at: https://extortionletterinfo.com/
Wow – very interesting stuff (I read the whole thing…). I think Matthew Chan has also provided a pretty decent template to follow if one should inadvertently find oneself in a similar situation.
I’m not trying to minimize the dangers here, but again, in nearly 20 years of doing this, I’ve not only never run into this personally, but up until reading the full account of Chan’s ordeal, had never even heard of it happening to anyone else.
And I think that’s largely the case because the kinds of clients we’re dealing with are much more buttoned up when it comes to covering the intellectual property base as it relates to images when creating marketing materials. Chan’s situation (and apparently many others) are a case of someone hiring a web designer in India, and it turns out that many of these designers have, shall we say, a much less rigorous understanding of, and regard for U.S. copyright law.
But, I’m glad you put this on my radar. It’s good to know this stuff, and, have some perspective to reference should we (or someone we know) encounter such a scenario.
PB
Thanks Peter. To cut a very long story short it has happened to many people – it’s been reckoned that Getty alone have sent out tens of thousands of letters. And some have been thumbnails, work samples etc…even cases where a designer has put up proposed designs on a temporary site to show a client, these were up just for a week or two but were discovered months or even years later by their crawling software and the demands issued.
And as you’ve probably guessed, it happened to me. And yes it involved an Indian web designer used by someone who I had thought was my friend but who subsequently behaved extremely badly (as with politics, it’s often not the original offence but the attempted cover-up that’s really wrong). I was assured that the pictures were free…and then I get a threatening demand for around £1,500 per image (I’m in the UK) – with four images that’s the equivalent of about $10,000 they wanted. After a couple of legal letters I got them to go away.
But enough people have obviously paid up to make it worthwhile for them to continue making these demands. And now Masterfile and others are copying them.
Anyway, I now warn people to be very careful of using any images anywhere, even the smallest thumbnail or crop. I also recommend clients with websites to use their own pictures where at all possible, not stock photography. And I advise fellow copywriters to be careful!
Thanks, Peter,
I appreciate your taking the time to provide more detail. Okay, I’m convinced it’s a potentially serious issue. And wow – sorry you had to go through it! But, also sounds like it had a positive resolution (though I’m guessing getting to that point was no fun…).
Read and heed, everyone. Always ask the origin of any stock photos that appear in any samples you have on your site. And know that should it happen, it’s not a foregone conclusion that you’ll have to shell out money.
PB