When is your business liable for unlicensed images?

If your website displays a copyrighted image without permission, your business is liable for infringement, regardless of whether you or your web designer selected it. This is one of the clearest rules in UK copyright law.

Who is liable under UK law

Under section 16 of the Copyright, Designs and Patents Act 1988, copyright owners have exclusive rights to copy, publish and control their work. When someone reproduces a copyright work without permission, they infringe that right.

The key legal principle is that the publisher of infringing content is liable, even if they didn't create it. In practical terms, that's the website owner or the business whose site displays the image.

Section 17 of the CDPA 1988 defines copying as "reproducing the work in any material form." Publishing an image on a website is reproduction.

Can the web designer be held liable too

Yes, but with important limits. Under common law, a web designer who knowingly uploads infringing images can be a joint tortfeasor (a co-infringer). However, UK courts set a high bar for this.

The designer must have had knowledge of the infringement and acted with substantial involvement. Merely uploading images on the website owner's instruction, without knowledge they are unlicensed, is unlikely to create personal liability for the designer.

The leading principle is that knowledge is essential. A director or contractor cannot be held liable simply by participating in company operations if they lacked knowledge of the essential facts of the infringement.

Joint tortfeasor liability under UK law

A web designer can be liable as a joint tortfeasor if they knew or should have known that the image was not licensed. The principle is established in the House of Lords case CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] AC 1013, which held that a person who authorises or substantially participates in an infringement, with knowledge of the infringing act, can be jointly liable.

For web designers, this means:

• If a designer simply downloads an image from Google Images without checking for licensing, and no evidence shows they knew it was unlicensed, they are unlikely to be personally liable.
• If a designer is asked by a client to "get this image from the internet and put it on the site" and complies without checking licensing, they are also unlikely to be personally liable under UK law unless they had actual knowledge the image was protected.
• If a designer is aware that a client is requesting unlicensed images, or if they knowingly source images without checking licenses as a business practice, they may face liability as a joint tortfeasor alongside the website owner.

In practice, copyright owners typically pursue the website owner first, as they are the publisher and more likely to have assets or insurance to cover damages. Pursuing the designer requires proving knowledge and active involvement, which is harder to establish. However, if the designer's conduct is flagrant or they are a repeat offender, joint liability is possible.

The key distinction: negligence or carelessness by the designer does not create liability. Only knowledge or reckless disregard does.

Your contractual protections are limited

Many businesses assume they can shift liability to the designer through a contract clause. In practice, this protection is weak.

If your contract with the designer includes a warranty that all images are licensed or original, and the designer breaches that warranty, you can pursue them for breach of contract. However, you still remain liable to the copyright owner for the infringement itself. The copyright owner's claim against you is separate from any contract claim against the designer.

To strengthen your position, ensure your design contract includes three critical clauses:

1. Intellectual Property Warranty clause. Example: "The Designer warrants that all materials, images, code and content supplied are either original works created by the Designer or are licensed for use by the Client. The Designer warrants that the use of such materials will not infringe the intellectual property rights of any third party."

2. Indemnity clause. Example: "The Designer indemnifies and holds harmless the Client from any claims, damages and costs (including solicitor's fees) arising from the Designer's breach of the IP warranty or any infringement of third-party intellectual property rights in the Designer's work."

3. Audit right clause. Example: "The Client reserves the right to request evidence of licensing (such as download confirmations or licence agreements) for any images or third-party components used in the website. The Designer must provide such evidence within 14 days of request."

Even with these clauses, if a claim arises, you may need to pursue the designer through breach of contract proceedings. This takes time and money and is only viable if the designer is solvent and you can prove the designer knew of the risk. In most cases, it is faster and cheaper to settle the copyright claim directly and then attempt recovery from the designer, rather than defend the claim.

What damages look like in practice

The 2015 IPEC case Absolute Lofts South West London Ltd v Artisan Home Improvements Ltd illustrates the financial exposure. Absolute Lofts, a small loft conversion company, sued Artisan for copying 21 of its photographs. The court awarded Absolute Lofts £300 in compensatory damages and £6,000 in additional damages for the flagrant nature of the infringement.

This shows that even a small business can pursue copyright claims through the IPEC (Intellectual Property Enterprise Court), and damages can reach several thousand pounds even for a modest number of images.

Another case, Hoffmann v Drug Abuse Resistance Education (UK) Ltd, involved a charity that used 19 unauthorised drug photographs on its website. The court ordered £10,000 in damages plus interest, finding that the charity's "innocent" acquisition of the images online did not excuse infringement.

Both cases show that copyright owners are increasingly willing to pursue small and medium-sized businesses through the IPEC Small Claims Track, which handles claims up to £10,000 with lower costs barriers than traditional court proceedings.

If you discover your site uses unlicensed images

If you become aware that your website displays copyrighted images without permission, act immediately:

1. Audit your site. Systematically review all images on your website. For each image, try to find a valid licence agreement, download confirmation from a stock photo site, or other evidence of licensing. If you cannot find evidence, mark it as at-risk.

2. Replace the images. Remove unlicensed images and replace them with licensed alternatives from Shutterstock, Getty Images, Unsplash or other legitimate sources. Remove the images from all public-facing channels (website, social media, Google My Business). Unlicensed images in website archives or backups are lower priority, but consider deleting or renaming them.

3. Document the audit. Keep a record of which images you found to be unlicensed, when you removed them and when you replaced them. Include screenshots showing removal. This documentation is valuable if a copyright owner later pursues a claim, as it shows you acted in good faith upon discovery.

4. Notify your insurer. If you have cyber liability insurance or professional indemnity insurance, notify your insurer of the discovered infringement. Do this before receiving a claim letter. Many policies cover copyright claims, and early notice improves your chances of coverage.

5. Retain correspondence. Keep all emails and documents relating to the audit. If a claim is later received, share this documentation with your legal adviser and your designer (if applicable) as evidence of your prompt corrective action. While removal does not eliminate liability for past infringement, it demonstrates good faith and can support settlement negotiations.

6. Consider recovery from the designer. If your designer sourced the unlicensed images, send them a formal letter (preferably through a solicitor) referencing the IP warranty and indemnity clauses in your contract. Provide evidence of the unlicensed images and the costs you have incurred to replace them. This preserves your right to claim damages from the designer.

How to reduce your risk going forward

Verify image sources before publication. If your designer sources images, ask for proof of licensing. This means a copy of the image licence agreement, not just their word. Stock photo sites (Shutterstock, Getty, Alamy) provide download confirmations.

Use licensed images only. Free-to-use image sites like Unsplash and Pexels include clear licenses. Paid stock libraries like Shutterstock and Adobe Stock are safer because the licensor has vetting processes. Avoid Google Images as a source.

Get a written assignment of copyright. If you commission a photographer or designer to create original images for your site, use a written agreement stating that copyright in those images transfers to you or your business. Without this, the creator owns the copyright by default.

Audit your existing site. Review images currently on your website and check their provenance. If you cannot find a licence, consider replacing them.

Implement an approval process. Before your designer publishes changes, review image sources as part of your quality assurance.

The core responsibility is yours as the website owner. The most effective protection is to use licensed images from reputable sources and to document that licensing.

Insurance considerations

Professional indemnity insurance can cover intellectual property claims, including copyright infringement claims against your business. However, coverage depends on your policy terms:

• Professional indemnity insurance is the most relevant cover. It typically covers claims arising from your professional service or advice. For web designers, digital agencies and small businesses with websites, professional indemnity will often cover copyright claims. Coverage is usually £1-5 million per claim.
• Cyber liability insurance is broader but often excludes intellectual property claims. Many cyber policies explicitly exclude copyright infringement claims unless you can show the infringement resulted from a data breach or security failure. Check your policy wording.

If you have either policy, review the exclusions and notify your insurer if you discover an unlicensed image on your site or if you receive a copyright demand letter. Early notification is important; some policies require notification within a specified timeframe (e.g., 30 days of discovery).

Most UK small businesses do not carry professional indemnity insurance. If you do not have it and your website displays images, consider obtaining a policy. The cost (typically £300-800 per year for a small business) is minimal compared to the exposure of a copyright claim.

Key takeaways

• Website owners are liable for infringing images on their site, even if the designer selected them
• Web designers may also be liable if they acted with knowledge and substantial involvement
• Contractual clauses limiting designer liability have limited effect; you remain liable to the copyright owner
• UK courts award damages ranging from hundreds to thousands of pounds, and pursue claims through the affordable IPEC Small Claims Track
• Prevention through licensed images and written agreements is far cheaper than defence