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Say I want to have someone create some artwork for my website. How can I make sure they don't use copyrighted material? Or at least that it won't be my responsibility.

Assume a contractor, not someone hired as staff. (unless I'm wrong about this being the safer route). And obviously no intent for IP infringement. (by me, of course. Obviously the contractor knows if he/she copied someone's work... ) Also, what I'm looking for is a way to avoid any problems to begin with, so just telling me that the contractor would be responsible for any of that, isn't enough.

  • @Dawn I don't want to be sued for copyright infringement even if I can then sue the contractor who gave me the artwork. I want to avoid the whole problem. – ispiro Sep 11 '16 at 16:14
  • @Dawn I guess I should have said "successfully sued". Exercising more control would have some drawbacks such as perhaps creating an employer-employee relationship with that comes with that, alienating the contractor ("Look who thinks he knows my job better than I!"), and mainly - would take up much of my time on a subject I'm not an expert at. I'm not disagreeing with you, just explaining why I would rather just let the designer do the designing. Thanks for the ideas! – ispiro Sep 11 '16 at 17:29
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Unfortunately, there are no guarantees. There is no way to verify that a piece of art submitted by someone will not be found in court to have infringed on someone's copyright. One reason is that two works can be judged to be similar because they reflect similar themes and ideas of artistic expression, without any actual copying, so you just have to take your chances with a jury. Another is that the contractor might be less than honest, and there's no way to prevent that. A standard approach to infringement matters is to include an indemnification clause in your contract, which means that if the contractor infringes, they have to defend you against the accusation, which will reduce to suing the contractor and hoping to mitigate the damage to you by using his pockets. Hopefully he has money.

Professional liability insurance would be a wiser approach (in addition, not instead). Although you would / could be sued, the insurance company should take care of the matter for you (though you might have to sue them to force them to do so). One reason why an insurance company might refuse to cover you would be if it has sufficient reason to believe that you violated a term in the policy requiring you to not "contribute" to the problem. So if you have reason to think that a work is infringing but you ignore that evidence, then you would have negligently contributed to the problem, which could relieve them of their duty to take care of you. That would all get sorted out in a suit against the insurance company (which you want to avoid). It is not enough to declare that there is obviously no intent to infringe: what did you do to show that there is no intent to infringe? This is pretty much where the legal theory stuff ends. If you can figure out a way to match the submitted work against protected candidates (e.g. "other paintings of George Clooney"), vigorous efforts to weed out infringement would be the first line of defense against an infringement suit.

  • So basically, one might hire a designer, receive and use a design (images, etc.), and without any reason to think there's a problem - have to pay because the designer copied someone else's work... I guess it's better to have some lame looking site than take a chance on that. What a pity. Anyway +1, and thanks for the information! – ispiro Sep 11 '16 at 17:34
  • Along the same lines as insurance would be to get the contractor to post a bond. That way you know for sure they have money. Of course, unless you are an extremely valuable customer, it's probably not likely that your business is worth enough to convince them to do that. There are plenty of other potential customers who won't be worried about this issue. – Nate Eldredge Sep 11 '16 at 18:31
  • And a designer who intends to pass something copied from the internet to you as an "original design" is most certainly not going to sign any guarantees. – gnasher729 Sep 12 '16 at 11:14
  • @gnasher729 That's actually a type of solution :) Unfortunately, honest ones would probably not sign either. – ispiro Sep 12 '16 at 12:15

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