You may have heard the recent news report (September 22, 2015) about how a federal judge in California ruled that the song “Happy Birthday” is not subject to the copyright claim of Warner/Chappell Music. That company had purchased what it insisted were the successive rights to the song that was originally copyrighted back in 1935. This legal ruling declares that the song, which is said to have originated with two Kentucky sisters back in the late 1800s, is in the public domain and may be used freely, no longer entitling Warner/Chappell Music to collect some $2 million in annual royalties.

Campground owners are probably already familiar with the licensing rules that must be addressed when showing films or playing music within their parks. The entire concept revolves around the fact that intellectual property is, in fact, property. Perhaps not as tangible as a three-dimensional object that you have purchased, that intellectual property is the result of the work of one or more people (typically thousands of people in the instance of a feature film) who earn their livings by creating this work, just as you earn your living by running your campground. Without compensation, we have no more right to use their work than we have the right to take a ride in a car that we admire that we see parked along the side of the road. (Personally, I would like to take a spin in a nice Tesla Model S!)

When it comes to films and music, associations such as National ARVC have negotiated group discounts with licensing organizations such as the Motion Picture Licensing Corporation (MPLC) and the American Society of Composers, Authors, and Publishers (ASCAP). As a member, you should subscribe to those member programs in order to stay on the right side of copyright compliance.

Photography is another copyright zone that may directly impact your business. If you hire a photographer to take photos at your park, confirm in advance that you will own the rights to those photos without further compensation. If you are using stock photography, on the other hand, there are two basic types of usage rights: royalty-free and rights-managed. With royalty-free images, you pay a one-time fee to either a photographer or a photo agency, allowing you generally unrestricted rights to use a photo. Reproduction of images on articles for resale (such as posters, calendars, postcards, or coffee mugs) is generally not included, and the photographer retains the right to sell additional royalty-free rights to as many people as may be willing to pay the requisite fee. There is always the risk, of course, that your company and another company might purchase the same usage rights to the same photo, potentially creating an embarrassingly awkward situation.

Rights-managed photos, on the other hand, involve very specific licensing fees that are based upon how and where a photo is being used. These fees are always going to be substantially higher than the fees for the royalty-free usage rights that are more than adequate under most circumstances. Companies with deep pockets might choose to pay even higher fees for exclusive rights to an image, preventing anyone else from using the photo.

The important thing to keep in mind is that, if you are using a photo that you did not take yourself, you must be sure that you have paid any applicable licensing fees. Even a photo that you have taken yourself, if it includes another person or another person’s property, may not be yours to use in a manner that involves public distribution (either in print or online). If you need a stock photo or graphic, turn to one of many online stock photo agencies. You are likely to find the perfect image, and you may then pay a reasonable fee for royalty-free usage rights. (The stock image illustrating this story is a perfect example of a royalty-free image, rights to which I have purchased for this specific purpose.)

What you must not do is carelessly assume that you have the right to use a photo simply because it appears in a Google image search. For example, I just did a search for “John Wayne”, and I can assure you that somebody owns the rights to each of those photos. In fact, the family of the actor has even attempted to copyright the name “Duke”, taking legal action against Duke University in the family’s efforts to license the actor’s nickname for a line of Kentucky Bourbon Whiskey.

I was recently contacted by one of my company’s campground clients who had received an e-mail from Getty Images (a very large rights-managed stock photo agency), demanding compensation for copyright infringement. My client questioned the validity of the e-mail, since there are so many phishing scams these days that look quite official. Unfortunately, this demand notice was very much the real thing. Apparently, one of my company’s employees had somewhat carelessly found a photo of a red-tailed hawk in flight (no doubt using a Google image search) and used it to accompany a link to information about a nearby raptor migration lookout.

It is clear that companies like Getty Images are using some very sophisticated image recognition technology to actively seek out and pursue cases of copyright infringement, regardless of intent or knowledge.

Their correspondence included the following notes:

• Ceasing use of the imagery does not release your company of its responsibility to pay for the imagery already used. As the unauthorized use has already occurred, payment for that use is necessary.
• You may have been unaware that this imagery was subject to license. However, copyright infringement can occur regardless of knowledge or intent. While being unaware of license requirements is unfortunate, it does not change liability.

In this case, I took responsibility for the error in judgment on the part of one of my employees. I removed the image from our client’s website, and I paid Getty Images the $520.00 that they demanded in settlement. A friend of mine who runs a travel website later told me that he had once been sent a demand in the amount of $4,200.00 for using a historic photograph of Abraham Lincoln on his site. Even the images of one of our most beloved Presidents are apparently not in the public domain.

In summary, let me offer fair warning and a word to the wise, urging my readers to be cautious to an extreme when using stock photos. In the meantime, let’s all sing a round of “Happy Birthday”, since it is somebody’s birthday today and every day.

It’s late at night, a tired driver pulls up in front of your house, walks in your unlocked front door, and proceeds to enjoy a sound night of sleep in your spare bedroom. How would you react? Confronting the stranger, he tells you that an unlocked door is an open invitation to guests. Another night, your door is locked, and another stranger climbs in through a window. This one brings his entire family, redecorates, changes the locks on the doors, and wants to know what you are doing in his house.

You might think that these stories are crazy, and you would be right; however, have you ever done an image search on Google when you were looking for a certain photo or illustration to use in your own promotional materials? Unless it is specifically marked as “freeware” or “open source” by the original artist, you are probably just as guilty as one of those uninvited guests.

Most people know that just about any image or text that is ever posted online will be shared, re-posted, and indexed by search engines. Even embarrassing personal information has a life of its own. In fact, it took a May 2014 ruling by the European Union’s top court to enforce the new “Right to Be Forgotten” policy that affects Google search results that are based upon an individual’s name. In the first month, according to The Wall Street Journal, over 40,000 removal requests were filed; however, the removal process is a slow and tedious procedure that is currently in effect only in EU member countries.

When it comes to that image search on Google, when you click on an individual image, the only disclaimer is the “images may be subject to copyright”, wording that is intended to relieve Google of liability, not to protect either you or the rights of artists. It is safe to assume that any use of an image found in this manner is a copyright violation and inherently illegal.

Put yourself in the shoes of an artist – or an author, in the case of text – and try to see the situation objectively. Nobody has a right to stay at your campground without paying a fee. Your campground is your livelihood. Well, the same thing applies to artists, illustrators, authors, and other people engaged in creative pursuits. They earn a living, put food on the table, and clothe their children by selling rights to their work.

One of our clients was mildly chastised recently for using a piece of artwork that he found in a Google search on one of his Facebook posts. Google did not clearly warn him that the artwork was copyrighted, but the artist did. It was a simple matter of apologizing and deleting the image; however, if the image had been used on printed materials, it could be another story with an entirely different outcome. Fortunately, most artwork found online is low resolution and unsuitable for use in print. Using artwork found online in printed materials could actually lead to a cease and desist order that could require any materials containing an unauthorized image to be recalled and destroyed.

Another of our clients, Baker’s Acres Campground in New Jersey, has a very distinctive raccoon logo that we hired an artist to design on their behalf back in the 1980s. It is the campground’s registered trademark, they paid to have it created, and the original artwork is in our files. I just discovered that another campground has been using this artwork as its own logo, simply adding a feather to the back of the raccoon’s head. I spoke with the owner of the campground, and he sounded like a very nice individual who had no ill intent. He simply thought that he had used a piece of art that was in the public domain and then modified it. It apparently appears online and on his brochure, although I advised him to stop using it. Other instances may not result in such a friendly outcome.

If you require artwork for any purpose, there are two options. Either hire an artist to create custom artwork or buy usage rights to royalty-free stock images. Artists or illustrators can be easily found online through various resources such as www.elance.com; stock photography and illustrations are also readily available online through various resources such as www.shutterstock.com and www.123rf.com. Prices are remarkably affordable, and it is difficult to put a price on peace of mind.

The bottom line is that a Google search for images might be fine to provide ideas regarding what is already being used, perhaps helping you to avoid using something that is too similar to existing art; however, it should not be used as a resource for finding unique images that are free for the taking. In other instances, the search results might include watermarked stock images, with a link to the site where usage rights may be purchased.

Think about it: the reason that Google is indexing an image is because it is already online and being used, almost certainly by a business that has paid for that privilege. You do not want to act like that uninvited guest who is looking for a free place to spend the night.

An online version of a seminar which I presented back in 2008 at the 44th Annual Northeast Conference On Camping, in Springfield, Massachusetts has been frequently referenced on other blogs. In particular, there are many links to a sample model release / waiver form that I have made available. The following is an excerpt from that seminar that covers the topics of Releases, Rights Management, and Legal Issues involving photography of guests at a campground, resort, tourist attraction, theme park, ski area or other similar place of business. Bear in mind that I am not a lawyer and that none of the information presented herein should be considered to be legal advice.

We are living in a society that is obsessed with litigation. We are also living in a society where our rights to personal privacy are under constant attack. When it comes to advertising photography, my recommendation is that you do your best to protect both your interests and the rights of your guests. Never, under any circumstances, take a photograph of anybody without their advance knowledge or, in the instance of a once in a lifetime candid photo opportunity, by getting their express permission immediately afterward. Always remember that you are taking photographs, not snapshots.

Nobody plans a vacation at a campground (or anywhere else) with either the intention or expectation of becoming a model. On the other hand, over 99% of your guests will be thrilled to be a part of a photo shoot and will go out of their way to be cooperative. Nonetheless, it is important that you at least get people’s implied, if not their signed, consent. I am pleased to provide you with a model waiver template which you are free to use; however, it is important to presume that no waiver or release will ever hold up in court. The rights of the individual will always prevail. The primary purpose of a release is to weed out potential problems from that one person in a thousand who would like to get rich quick and own your business, with the help of his attorney brother-in-law.

If a release is so powerless, when and why should it be used? In a public setting, where nobody is being held up to ridicule, I have always followed two rules:

1. If there are fewer than 7 people in a photo, get them each to sign a release.

2. If there are more than 7 people in a photo, but anybody is prominently featured in the center or foreground, get signed releases.

A third rule might be to always get signed releases for any children whom you photograph, remembering that only a parent of a minor has the legal authority to act in this manner.

If you take a photograph and a person balks about signing the release, refuses to sign the release, jokes about compensation or a lawsuit, or the subject is a minor who is not accompanied by a parent, make a note to not only not use the photo but to destroy the photo in order to prevent it from ever being used unintentionally or without your knowledge (but, as the photographer, with your ultimate responsibility). Should you hire a photographer to take photos on your behalf, you will share any liability which results from that photographer’s failure to exercise due diligence in obtaining a release.

Some resorts incorporate a blanket release into their registration agreement; however, these are much less likely to hold water in court than a signed release (which is already as water-tight as a colander) and are perhaps little better than no release at all.

Again, if you are hiring a photographer, you should be aware of precisely what it is that you are purchasing. As with stock photography, you need to know what rights are being conveyed. Just as certainly as stock photography will always require payment of a fee, no reputable photographer will ever perform what is legally defined as “work for hire”. You will not be purchasing the actual photographs (which is essentially virtual property anyway now that almost all photography is digital) but the rights to use those photographs. If there are any restrictions on their use, aside from actual ownership itself, be sure to get those limitations defined in advance.

Read the entire online seminar by clicking here.