STEPABLES Sues for Copyright Infringement

Chris Beytes

Just because photos are readily available on the Internet doesn’t mean you can use them without risk. Frances White, founder of Under A Foot Plant Co. and creator of the STEPABLES line of low-growing perennials for walks, borders and lawn replacement, sued and won in Federal Court over the improper use of her photographs by Perennial Farms, owner of the Treadwell Plants line, a STEPABLES competitor, on their website and on marketing materials.

The U.S. District Court in Maryland ruled that Perennial Farms had infringed on at least 12 copyrighted images owned by Under A Foot Plant Co.

“We have been fighting Perennial Farms since 2011 to have our photos removed from their competing websites and marketing materials,” said Frances in a press release. She had first spotted the improper use of her photos in 2011 and made Perennial Farms aware of the unauthorized use and they agreed to stop using them. However, she again found her photos in 2012 and 2014, so she filed the suit.

In their defense, Perennial Farms claimed that there were “clear distinctions” between the STEPABLES photographs and the pictures displayed on their marketing materials and websites, but the judge ruled otherwise. They also argued that they weren’t liable because the photographs used on its website may have been obtained “from garden centers, landscapers, and public domain websites,” from purchases through “various websites” or the product of “independent creation.” But again the Court disagreed, saying that even if the images were obtained through intermediaries, the defendant would still be liable for reproducing the plaintiff’s protected works without permission.

The case continues, as a jury trial will determine if nine additional images have been infringed upon and to what extent monetary damages could be awarded (possibly up to $150,000 per copyrighted work).

Let this be a lesson: In this day and age of easy online photo access, make sure you’ve got permission from the legal copyright holder for any images you’re using for marketing or your website. GP