by Kenneth F. Whitman, Esq., Aon Affinity Travel Practice Senior Program Manager

The Danger of Do-It-Yourself Designs
Travel agents and tour operators often promote their services through sophisticated websites, lavish printed brochures or other promotional materials. The cost of these marketing methods has dropped dramatically in recent years.

There are do-it-yourself web designing companies, where within a few hours you can build a professional website for less than the cost of a dinner out. Many of the national chain office supply stores offer do-it-yourself professional brochures, at a fraction of a printer’s cost.

The downside? Your website and promotional materials can cost you and your company more than you anticipated, and can cause you serious aggravation if you get hit with a nasty, little claim called copyright infringement.

Intellectual Property Law Violations
In the United States, intellectual property such as photography, music and literary works are protected through copyright law. When a travel company places a photo taken by someone else on their website or in their brochures, they face potential copyright infringement claims.

These claims are usually initiated through threatening demands by attorneys representing the stock photography agencies that own the images. Imagine receiving the following ultimatum: “We will accept settlement in the amount of $9,500. If we don’t receive payment by February 9, 2018, we will institute legal action and may be entitled to damages up to $150,000.”

Often the travel company will explain, “But, I obtained the photo on a free website;” or “my employee put the photo up, I have no idea where they got it from;” or “we hired a professional web design company to build our website and they provided the photograph.”

Copyright law does not excuse unintentional or accidental use of someone else’s intellectual property, even if it was done by an independent third party. 

If it’s someone else’s photo and you do not have a license or permission to use it, you are in violation of the law, and liable for damages to the photographer. When photos are available for “free,” it is for one’s own personal use, only. You may use it as your screen saver, mousepad or something else personal in nature. As soon as it’s used commercially, it is no longer “free” and violates copyright law.

Your Inadvertent Error is Someone Else’s Payday
Today, many copyright infringement attorneys use methods which are predatory in nature. They use digital web crawlers that search for their clients’ photos. Some individuals intentionally put their photos on websites, which give the appearance and impression that they are free for the taking.

At the same time, these photographers or their stock photo companies have websites where they post photos licenses for sale for those same “free” photos at inflated prices. This is done, so when their case goes to trial, they can demonstrate that they lost income by your unlicensed use of their photograph.

While charging fees in excess of $1,000 for a one-year license, some of these photographers have never made a dime from the legitimate licensing of the photo. All of their income is derived from the predatory demands made on unsuspecting individuals or companies. You can take the picture yourself for less money than they will charge for one year’s licensing fee.

How a Claim May Play Out
An attorney who represents a photographer sends out a threatening, fear evoking demand letter regarding the purported copyright infringement, which our insureds have described as extortionist in nature. What makes these demands even more difficult is that copyright statues in some states may contain provisions that afford attorney fees to the owner of the photo.

Since unintentional or accidental use is no defense to the claim, most often the only issue to be decided is the photographer’s damages. If you dispute the claim based on the unreasonable damages demand, ultimately your actions are only driving up your damages and costs, including potentially the claimant’s attorney fees, which a court may award.

How can a travel company protect itself?
First, you should scour your brochures and website, both active and archived pages.

• Any photo taken by you or one of your employees is safe.
• All others, if unlicensed or if there is no proof of permission, should be removed from the website, and hardcopy brochures should be taken out of the stream of commerce.
• Those photos should then be replaced by properly licensed photos or photos from your own stock.

Second, you should contact your insurance broker or your underwriter at Aon Affinity Travel Practice to find out if your business qualifies for the Advertising Injury Liability Endorsement.

This endorsement will protect your business from inadvertent infringements of other’s copyrighted materials, by providing both defense and indemnification, when necessary, and will save you a lot of aggravation and monetary loss.