Thou Shalt Not Swipe

You know you’ve done it; nearly everyone has. But using copyrighted images without permission is illegal, and it’s bad for the design profession.

No discussion of swiping can begin without understanding the opposing principles involved.

First, some basic tenets of copyright law: 1) Photographers own the copyrights to their photos; 2) No one can copy a photographer’s work for any commercial purpose without permission.

Second, some basic facts of digital life at the dawn of the new millennium: 1) It’s incredibly easy to copy, scan, manipulate or download images without permission; 2) Everybody does it.

So swiping is illegal, but everyone does it. The big problem is, not everyone gets away with it. Wyse Advertising in Cleveland found out the hard way.

Mel Curtis, a Washington-state photographer, owned the copyright to his photograph of a wheelchair, which was published in Communication Arts in 1985. Wyse Advertising scanned the picture and then used it in comps for a big ad campaign for General Dynamics, without Curtis’ permission. Wyse then hired another photographer to recreate a new photograph based on Curtis’ original, and used the new photograph in the General Dynamics campaign.

The law gives a copyright owner five specific rights with respect to copyrightable work. A copyright owner has the right to reproduce or copy the work, to display the work, to make derivative works from the original, to distribute the work and, in the case of the performing arts, to perform it.

In the Curtis case, Wyse Advertising infringed Curtis’ copyright in three ways. First, Wyse copied the image from CA. Then the agency displayed the shot by using it in comps. Then it made a derivative work by commissioning a new photograph based on Curtis’ original image. For infringing Curtis’ copyright in so many ways, Wyse paid the photographer $140,000 in damages and attorney’s fees.

The Symptoms of Swiping

Swiping is copyright infringement; there’s simply no way around it. And sometimes a design firm or creative agency does get caught, no matter what the excuse may be. It’s infringement when you swipe for use in comps. It’s infringement even if the image from the comps isn’t used in the final design. It’s infringement even if you’re just “borrowing” and don’t realize you’re using someone else’s copyrighted image. It’s infringement even if it’s totally impractical to get permission for three or four rounds of comps that have to be done in a very short period. It’s infringement even though everybody does it and it’s so easy to do. It’s infringement even if you modify the image a little. It’s infringement even if you only use a small portion of someone else’s work. It’s infringement even if you can’t find the owner of the photograph.

And it’s not just the swiper who’s liable for copyright infringement when an image is used without permission. A photographer who’s asked to recreate a shot is also liable, as is the agency who presents it to a client, as is the client who publishes it. Anyone who assists in the creation of an infringing image is a contributory infringer under copyright law. The risk is not insignificant, as Wyse Advertising discovered. Anyone found liable for copyright infringement could be on the hook for all the profits that resulted from the infringement, or statutory damages that could range from $20,000—$100,000 per infringement.

Keep it Legal

How do you avoid being either a swiper or a swipee? What steps can you take to avoid having your work swiped or using other people’s work without permission? First, take advantage of the protections that the copyright law provides you. Whether you’re an illustrator, photographer, freelance designer or established firm, never send anything out without a copyright notice on it (© Jane Q. Artiste 2000). That includes slides, prints and everything in your portfolio or your firm’s self-promotional materials. Register your work with the Copyright Office.

In addition to the copyright line, put other notices on your work that read, “Please don’t use in comps without permission” or “Do Not Swipe.” If you’re an illustrator or photographer, insert a price list in your portfolio or sample packet that includes a fee for comp use. Whenever you find out that a firm has used your photo or illustration in a comp, send an invoice for the usage.

Your very livelihood as a creative professional depends on your vigilance in the copyright arena. Pay as close attention to the use of your work by other people as you do to creating it. Every time somebody swipes, somebody else loses money.

What if you’re on the other end—either you’re asked to infringe another’s work or you’re tempted to use images that you don’t own in comps? The Golden Rule seems most appropriate here: Treat other people’s work the way you want your own work to be treated. Suggest alternatives to the copying. Find a public-domain image or use something you already have the rights to. Or get permission. The cost for legitimate usage is insignificant compared to the risk of a lawsuit.

One last thing to keep in mind: Everybody in this business is in it together. Art directors need to work with photographers and illustrators. Photographers and illustrators need work. Agencies need images to pitch to clients. Everybody benefits when the goal is original creative work. Swiping is bad business and it’s illegal. Avoid it.

HOW June 2000