When Someone Points the Finger At Someone Else for an Infringement. . .

. . . there are three fingers pointing back at that someone.

Many website owners/companies will claim that they are not liable for the use of infringing images on their websites because they hired a website design company that posted your image. But they can’t escape liability that easily. Such was the case in Corbis Corp. v. Starr, N.D. Ohio, Case No. 3:07CV3741 (for which the court granted summary judgment to Corbis on  Sept. 9, 2009).  In that case,  Nick Starr, who owned a business named Master Maintenance  (“Master”), hired West Central Ohio Internet Link, Ltd. (“West Central”) to redesign and host his website. Corbis found four of its images on the Master website without a license and sued both Starr and West Central for copyright infringement. Corbis asserted that jointly and severally willfully infringed Corbis’ copyrights by placing four copyrighted pictures on Master’s website. The two defendants disagreed as to who supplied the four Corbis images for the website. Regardless, the court held that West Central was directly liable for the infringement because it copied the images to the website. The court explained:

Corbis, furthermore, has proven that West Central copied Corbis’ images by posting them on Master’s website, which West Central redesigned and hosted on its server. See Playboy Enters., Inc. v. Webbworld, 991 F. Supp. 543, 551 (N.D. Tex. 1997) (finding the unauthorized reproduction of images on a computer server to violate plaintiff’s copyright); Nimmer, 3 Nimmer on Copyright § 8.08 [A][5][a], 8-131-32 (2008) (“[T]he input of a work into a computer results in the making of a copy, and hence, that unauthorized input infringes the copyright owner’s reproduction right.”) (Nimmer).

The court also found Starr/Master vicariously liable for the infringement. To establish vicarious liability for copyright infringement, a plaintiff must prove that the defendant received a financial benefit from the direct infringement and had the right and ability to stop or limit the infringement but failed to do so. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.545 U.S. 913, 930 (2005); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1173 (9th Cir. 2007); Nimmer, supra, § 12.04[2] (2009) (“defendant must have the right and ability to supervise the infringing conduct and secondly, the defendant must have an obvious and direct financial interest in the exploitation of copyrighted materials.”). Based on this law, the court stated that Starr/Master also was liable:

Master used the copyrighted images for financial gain. Master redesigned its website for marketing purposes, to highlight its industrial cleaning business and attract new customers. Three of the four misappropriated images depicted janitorial and cleaning services. The use of copyrighted images to help draw customers can constitute a financial benefit. See Perfect 10, Inc. v. Google, Inc., 416 F. Supp. 2d 828, 857 (C.D. Cal. 2006) (holding that even absent revenue, future hope of financial benefit constitutes a direct financial interest) rev’d on other ground, Perfect 10, Inc., supra, 508 F.3d at 1175 n. 15 (“Having so concluded, we need not reach Perfect 10’s argument that Google received a direct financial benefit.”).

Master had the right and ability to stop or limit the copyright infringement and failed to do so. Master employees, Riepenhoff in particular, were responsible for approving changes to the site, including the placement of images. Even if Master did not supply the images at issue, it had the authority to approve or reject their use.

In sum, a company is not off the hook just because its website designer put your photo on the company’s website. Instead, be sure to hold all responsible parties liable for the infringement.

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