Nolo’s Patent, Copyright, and Trademark Blog

Dear Rich: I purchased a web hosting package a few years back that included free website templates. When I created a different website, I used one of the templates, including the top photo. I just got a letter from a major stock photo company asking for $1,300 and to pay for a license or remove the image. I immediately removed the image, but I can’t afford to pay $1,300. I have all the documentation about the free templates. Do I have to pay $1,300 for something I thought was free? I’m so glad you asked. $1,300 for a website image? Wow! Here at Dear Rich headquarters we pay istockphoto.com about $1 for low res images (like the one on the left). In any case, you did the correct thing by immediately removing the image (and keeping the documentation). Hopefully, that demonstrates your good will.

There are a few things that may be going on here. Your original web hosting package may have included a permission to use the photo but that permission did not extend to other web hosting services. Or, perhaps the first web hosting arrangement never really got the proper permission, so wherever you use it, you’ll have a problem. The photo may have some digital watermarking embedded so that the stock photo company can trace all such uses and catch those who use it without permission. If you’re using it under the terms of the original webhosting agreement, you need to look to your agreement and your webhosts for resolution. If not, the stock photo company likely has a legitimate claim for infringement.

How far will they pursue it? It’s possible they could file a lawsuit, but that doesn’t seem practical or likely — they wouldn’t recover the costs of the litigation. Odds are good that if you write and explain your mistake — you mistakenly thought you had a license to use it — the whole thing will go away. They may send some more threatening emails, but the chances of anything going beyond that are unlikely. If I’m wrong (hard to believe, but it happens), let me know and maybe we can trigger a Streisand effect.

Dear Rich: I have a question. I’m in charge of a website for our local elementary school. We have a program where students can upload their drawings. Someone told me that I have to get permission from the parents or else I am in violation of the law. Is that true? I’m so glad you asked. The law that you are probably referring to is the Children’s Online Privacy Protection Act (COPPA). You need to be concerned about COPPA if your website is directed at children (under 13 years of age) and it collects information “that would allow someone to identify or contact the child,” — for example, names, addresses, phone numbers, email addresses, and similar information. COPPA also applies if you’re using cookies (no, not the chewable kind) to track the child’s activity. So, in the case of your website, you would want to be sure that the drawings that are uploaded do not contain personally identifiable information — for example, the child’s address is written on the drawing of a house, a license plate is written on a drawing of a car, or names are used to identify family members . If you are collecting personally identifiable information, you’ll need to comply with the Act’s requirement for parental permission. What’s the biggest fine so far for violation of COPPA? $1 million.

Dear Rich: I have a question. I’ve been buying domain names that are common misspellings of well-known online retailers and then setting up websites with Google Ads. So when someone types in the wrong spelling, they arrive at my site. Then, they can then click through to the correct company’s site using a Google Ad. I got a letter from one of the companies telling me to take down my site and give up my domain name. Why? Sure, I make some money, but aren’t I doing a good thing by leading people who misspell domain names to the right company? I’m so glad you asked. I can’t tell you whether what you’re doing is a ‘good’ thing or a ‘bad’ thing — let’s leave that up to the Dalai Lama — but I can tell you that what you’re doing is called typosquatting.

A typosquatter purchases misspellings of domain name in the hopes of catching and exploiting traffic intended for another website. (It’s been a lucrative source of income for many years.) Typosquatting is a variation of cybersquatting and if the company whose name you’re exploiting takes you to arbitration under international domain name arbitration rules and proves you’re acting in bad faith, you’ll have to give up the domain name. If the company takes you to court in the U.S. instead, you’ll have to give up the name, and perhaps pay damages. Some companies guard against this practice by purchasing the misspellings, such as www.amzaon.com (sic). Others have to chase down violators and either buy the name back from the squatter or go after them with lawyers — for example, Land’s End went after a typosquatter who purchased domain names such as www.lnadsend.com and www.landswnd.com and then demanded money for referring customers under the Land’s End affiliate program. Nice scheme. (Land’s End prevailed in the early stages of litigation, but so far, the company hasn’t managed to acquire the domains.) Another unfortunate problem — some unscrupulous typosquatters trigger malware. Arrivederci!

Dear Rich: I have a question. I’ll be using a lot of screenshots from different websites in my book. Do I need to get permission for that or is it a fair use? I’m so glad you asked. Conventional wisdom (and the Electronic Frontier Foundation) says that an unauthorized screenshot is an infringement. That said, the use of screenshots rarely triggers a complaint because either: (1) the copyright owners don’t want to complain about something that promotes their company — for example, an online tutorial about using Microsoft Word, or a book about starting an eBay business, or (2) the copyright owners believe the use is likely to be excused as a fair use. Although issues don’t often arise, occasionally copyright owners do complain — for example, Apple complained about pre-release screenshots of the iPhone. Some sites place limits on your use of screenshots in their user agreements.

Keep in mind that if the copyright owners do complain, the results can be unfortunate–it may disrupt publication of a book or other product. Perhaps a more important issue to consider is whether what you are doing is likely to anger or annoy the copyright owner. If it is, proceed with caution and review your use of the company’s trademarks so that your use doesn’t imply an association or endorsement.

P.S. In the future, sites will be able to block screenshots.