$ 12 million lawsuit – when digital consent management goes wrong

A $ 12 million lawsuit against video game developer Capcom was launched by American photographer Judy Juracek earlier this year for allegedly using 80 of her images without her consent. Last year, another American photographer, Mathilde Gattoni, in the $ 2.25 million lawsuit against Microsoft, claimed that she used 15 of her images for an MSN article without a license or permission. Copyright infringement lawsuits against companies show no signs of slowing down.

It’s not just photographers claiming their intellectual property rights, it’s amateur photographers who took snaps that were lifted like the case of storm chaser Sean Heavey, who spotted his image used by Netflix to promote his series, Strange things. The photographer, who was reportedly initially fired by the streaming giant, later saw his case settled out of court.

The wind is turning on companies when it comes to image consent. With more information about copyright violations and consumers increasingly aware of their rights, even the largest companies are insecure. The law is clear on the penalties for copyright infringement. Six months’ imprisonment or a fine of up to $ 68,000 (£ 50,000) is punishable by those who infringe copyright if convicted in a UK Magistrate Court, up to 10 years in prison and / or an unlimited fine if found guilty by a Crown court. The United States sees fines of up to $ 150,000 every time an image is used without the proper permissions.

A FotoWare digital asset management (DAM) survey showed that 72% of companies saw the number of digital assets increase in the past 12 months. With the exponential growth of digital assets within businesses and copyright infringement lawsuits showing no signs of slowing down, businesses must prioritize whether their images or videos are used correctly and with consent in all of their business functions, including marketing, design and human resources.

There are two main types of assets: personal and business images. While rights management is often in place and, if properly implemented, can prevent legal action, the management of individuals’ consent needs to be considered with the expansion of data privacy regulations, including GDPR and CCPA.

The images Capcom used from Juracek were from its collection, Surfaces – 12,000 photographs of textures, including those from: stained glass designs, broken glass, woodcarvings for artists, architects and designers to use for ” visual search “. Surfaces was published as a book in 1996, along with a CD-ROM of the images. Juracek has asked anyone using his images for commercial purposes to contact them directly for a license.

She states that Capcom has not contacted her and that at least 80 of her images are used – in one case the lawsuit claims the texture of the broken glass is in the Resident Evil 4 logo. With consent or license from Jurecek, Capcom would not be in this situation.

Besides the misuse of images for commercial purposes which causes headaches for businesses, there is also the problem of lack of image consent for an individual who violates data privacy regulations.

For GDPR violations, organizations can expect penalties of up to $ 23 million (€ 20,000,000.00) or 4% of the company’s worldwide revenue, whichever is greater. raised.

Compliance is a major concern for businesses. A third of FotoWare’s DAM survey respondents who manage digital assets cited GDPR and copyright issues as one of their main challenges.

With systems and strategies in place to capture, monitor, and alert stakeholders of consent changes, businesses can prevent GDPR breaches pending to occur, such as when a former employee – who had previously given consent to the use of its image – shares a company and exercises its right of withdrawal and erasure of personally identifiable information.

Marketing teams in particular, across industries, often rely on images of employees or other people for advertising and branding purposes, and therefore are forced to manage permissions for all individuals on all photos. used. Consent management strategies need to be enterprise-wide, as they affect more than just the marketing and sales functions. For example, the marketing slides could then be used in an external sales presentation, leaving a business exposed to liability, especially if the consent processing is verbal or performed by disparate individuals.

While it may be surprising to learn that high-level organizations should succumb to the pitfalls of gaps in their consent management practices, it logically follows that a given organization, especially larger ones, cannot always quickly locate, change or remove the consent status associated with the media they use, increasing the likelihood that they will violate copyright or personal data privacy regulations. Therefore, it is essential to keep consistent and up-to-date consent records where they can be easily viewed. Automated DAM software with integrated consent management solves this problem.

DAM software can avoid common pitfalls and streamline consent and management processes, saving many companies like the San Francisco Ballet time.

The dance company had the difficult task of manually obtaining image approvals from both the art department and the dancers. Manually printing photographs and presenting them to stakeholders for approval was a slow process and it was difficult for the dancers and the artistic department to properly visualize the details of the images. Plus, it meant there was no concrete paper trail to show what was approved and when, or by whom.

With a DAM in place, the San Francisco Ballet was able to digitize and speed up its approval processes. Once the performances are over, the dancers concerned are alerted by an application or an email that the Ballet wishes to use specific images. The dancer then simply activates the permissions that are transferred to the artist’s files.

Consent tracking of digital assets and the licenses surrounding them can be simplified through automated electronic systems. Digital Consent Management (DCM) centrally manages permissions around images and videos, making it easy to find relevant files and the consent given for that file. Additionally, individuals can withdraw their consent for the use of all instances of an image critical to compliance.

Managing digital consent around images is a key area of ​​compliance that is overlooked. With a strong consent management plan in place, businesses can avoid the time and cost issues of inefficient image storage and consent management, while still being confident in complying with regulations. rights and confidentiality.

Photo credit: VIPDesignUnited States / Shutterstock

Alex Kronenberg is FotoWare’s demand generation and community manager. Alex has a background in digital marketing and journalism and his role is focused on building brand awareness, generating inbound leads in a variety of target vertical markets, managing digital sales of FotoWare’s SaaS solution and of its single-user product, FotoStation.

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