Saturday, February 15, 2014

What Every Mortgage Lender Should Know about Copyright Infringement?

If you are a mortgage lender, you probably have generated many pieces of advertising for the loan products offered by your company.  Before releasing those ads, you probably spent countless hours on the content, aesthetics, and compliance aspects of the ads.  Everything seemed perfect.  

But, in many cases, your ads probably contain some kind of picture, graphic, or image.  Where did that picture or image come from?  Did you have permission from its owner to use it for commercial purpose?  If not, you may have infringed someone's copyright in and to that picture.  

Mortgage lenders of all sizes are subject to strict federal and state regulations with respect to advertising mortgage loan products.  On the federal side, lenders must comply with the MAP Act, Regulation N, the Truth in Lending Act, Regulation Z, the Fair Credit Report Act, and Regulation V.  At the same time, each state has its own mortgage advertising rules.  Given the severe consequences of a violation of the numerous federal and state rules, and in light of the CFPB's particularized attention on false and misleading mortgage advertising, mortgage lenders tend to spend much time and resources on advertising compliance.
The following may generally describe how a lender finalizes a piece of mortgage loan-related adverting.  First, a loan officer or production manager comes up with the desired texts for the ad; second, the compliance officer scrutinizes over the texts for federal and state compliance issues; third, someone with some computer skills "googles" for a visually appealing image and inserts it onto the texts; and finally, the ad gets distributed electronically or in print to the target audience.  Unfortunately, some lenders often neglect another important aspect of their advertising materials - copyright.

Copyright is the exclusive right of the owner of a copyrighted materials (music, literary work, pictures, among others) to produce, distribute, perform, or otherwise use such materials.  Copyright does not protect ideas, concepts, objects, or things; rather, it protects the original or creative expression of the underlying ideas, concepts, objects, or things.  Unlike for patents, the "original" or "creative" threshold required for copyright is low.  This renders most photographs, paintings, images, drawings, and musical notes copyrightable under federal law in the United States.  

Copyright infringement occurs when someone reproduces, displays, performs, or otherwise uses a copyrighted work during the copyright protection period without the permission, authorization, or license of or from the owner.  Unless you display or re-distribute a copyrighted work under some kind of fair use exception, i.e., commentary, criticism, parody, news reporting, or scholarly research, your unauthorized use of a protected work for commercial purposes is likely to constitute copyright infringement, which may be extensive civil damages.

Having reviewed copyright and the infringement thereof, let's think about how a mortgage lender can avoid committing, unwittingly, copyright infringement in making ads.

First, if you need a picture or image to make your ad "pop", conduct some internet searches to get the right look or "feel" for a picture.  But, don't just copy and paste a picture you find out there.  In most case, if not all, the picture you find and like on the internet is copyrighted.  Once you know the right look, you may want to use your own picture with a similar look.  If you don't have it, ask other employees in your company.  If they have a picture you like, obtain permission to use it.

Second,  if you or no one you know has a picture to your liking for a particular ad, think about creating one on your own.  Does your company have an artsy employee who can draw, make, or photograph?  Ask around and you may be surprised.

Third, if none of the above two options works for you and you really would like to use a photo you find on the internet, you may have to find its owner and ask for permission to use.  It may, however, be difficult to find the owner of a picture or image.  If you found the image via a google search, you may first use some technical means to identify the owner.  When that fails, you may want to go to flickr or similar websites to search for particular photos from the registered members of those websites.  It should be fairly easy to get in touch with the owner of one of the photos/images you like on those websites.  Contact the owner for permission to use.      

Fourth, when all of the above fails, you can always commission a graphic artist (a talented kid, an art teacher, etc.) to produce a custom-made image for you.  This may cost a small amount of money, but you know for sure that the image belongs to you because the artist created it for you under the "work for hire" doctrine.  You can re-use it as many times as you would like, without worrying about receiving a cease and desist letter from someone.         

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