One Image Can Create a Copyright Problem: What Businesses Should Know Before Using Photos in Marketing

A $200 Copyright Judgment Still Required Years of Federal Litigation 

Using a photograph in a business social-media post can feel routine. Someone needs an image for Facebook, a blog post, an email campaign, or a new page on the company website. An employee finds something that works, adds it to the content, and moves on to the next marketing task. 

A federal copyright case involving Prepared Food Photos, Inc. and Food Town Mart demonstrates how that seemingly minor decision can become a much larger problem. 

Prepared Food Photos sued NOFAL, LLC, which operated Food Town Mart, over a single photograph of raw pork chops posted on the store's business Facebook page. The case eventually went to a jury trial. The jury found that the business infringed the copyright and that its use was not fair use, but it also found that the infringement was not willful. 

The jury determined that $200 fairly compensated the copyright owner for its actual damages and separately identified $1,000 as statutory damages. The copyright owner elected actual damages, and the court entered a $200 judgment against the business. 

Focusing only on the $200, however, misses the more important business lesson. A single image used in an ordinary social-media post resulted in a federal lawsuit filed in 2022, a jury trial in 2024, post-trial proceedings, competing requests for more than $119,000 in attorney's fees, and another court decision in 2026. The court ultimately denied both sides their requested fees and costs. 

For small and mid-sized businesses, the lesson is straightforward: the potential cost of an image-copyright problem may have very little relationship to the commercial importance of the image that created it. 

“We Found It Online” Is Not an Image-Licensing Strategy 

Businesses use an extraordinary number of images. Photographs appear on websites, social-media posts, blogs, newsletters, email campaigns, online advertisements, product pages, presentations, brochures, and downloadable materials. 

The speed of modern marketing makes those images easy to obtain. That does not make them free to use. 

A photograph appearing in Google Images, on another company's website, in a social-media feed, or elsewhere online does not by itself establish that a business has permission to reproduce it. The relevant question is not simply where the marketing team found the photograph. It is whether the business has a legal basis for using it. 

That basis might be ownership, a stock-photo license, permission from the photographer or copyright owner, a license obtained through another source, or circumstances in which the use is otherwise permitted by law. What matters is being able to identify that basis before a problem develops. 

The Food Town Mart case illustrates the risk. The jury found that the business infringed Prepared Food Photos' copyrighted image and rejected its fair-use defense. The fact that the image was used in a Facebook post rather than a major advertising campaign did not prevent an infringement finding. 

Non-Willful Copyright Infringement Can Still Be Infringement 

Another important lesson from the case is the distinction between infringement and willful infringement. The jury found that Food Town Mart infringed the copyright but did not do so willfully. It also rejected the fair-use defense. 

That distinction matters for businesses because employees do not necessarily have to set out deliberately to violate someone's copyright before the company can face an infringement claim. 

A marketing employee might believe an image is available for reuse. Someone might receive an image from a vendor without asking where it came from. An employee could copy a photograph from another website, reuse something found on social media, or assume that attribution to the photographer is enough. 

The absence of bad intent does not automatically answer the infringement question. That is why an effective image-use policy should focus less on whether employees understand copyright doctrine and more on whether the company has a simple process for determining where marketing images may come from and what documentation needs to be retained. 

Fair Use Is Not a Substitute for Routine Image Licensing 

Businesses sometimes assume that using an image online is fair use because the image is only one part of a webpage, blog article, or social-media post. The Food Town Mart verdict is a useful reminder that fair use is not automatic. 

The court instructed the jury to consider the purpose and character of the use, the creativity and publication status of the copyrighted work, the amount used, and the effect of the use on the potential market for the copyrighted photograph. The jury ultimately concluded that the business had not established fair use. 

Fair use remains an important part of copyright law, but it is a fact-dependent defense. For an ordinary business using a photograph to make marketing content more attractive, relying on fair use after receiving an infringement claim can be a much less attractive strategy than establishing permission before publishing the image. 

The practical question for most marketing departments should therefore be simpler: Do we have the right to use this image for this purpose? 

The Person Who Posts the Image May Not Be the Only Concern 

The case also illustrates why businesses need to think about who controls company marketing accounts. 

Prepared Food Photos sued both Food Town Mart's operating company and Sharif Jaber, its manager and sole member. The copyright owner alleged that Jaber should be vicariously liable because he had the ability to control the company's conduct and benefited from the infringement. The jury ultimately rejected the vicarious-liability claim against him. 

That result should not obscure the operational issue. Businesses frequently give social-media credentials and content-publishing authority to employees, outside marketing agencies, freelancers, interns, website developers, and other vendors. The company may have little visibility into where those people obtain images. 

The better solution is not for senior management to approve every photograph. It is to create a process that allows authorized people to publish efficiently while establishing acceptable image sources and keeping evidence of the company's rights. 

Small and Mid-Sized Businesses Need a Practical Image-Use Policy 

A useful image policy does not need to turn every social-media post into a legal review. In fact, a process that is too cumbersome may simply encourage employees to work around it. 

The objective should be to make compliant behavior easier than risky behavior. 

A small or mid-sized business might begin by establishing a limited number of approved sources. Those could include photographs created by the company, properly licensed stock-photo services, images supplied by vendors with appropriate usage rights, commissioned photography, and other sources that management has determined are appropriate. 

The business should then retain the information establishing its rights to use the image. Depending on the source, that might include a license, invoice, subscription record, photographer agreement, permission email, screenshot of applicable licensing terms, or other documentation. 

This becomes particularly important over time. The employee who downloaded an image today may no longer work for the company three years from now when a demand letter arrives. Without records, the company may believe it licensed the photograph but be unable to establish where it came from or what rights it obtained. 

Marketing Agencies and Vendors Do Not Eliminate the Risk 

Outsourcing marketing does not necessarily outsource copyright risk. 

A company may hire an advertising agency, social-media manager, freelance designer, website developer, or content creator and assume that person is responsible for obtaining lawful images. Whether the vendor actually bears responsibility will depend in part on the parties' agreement and the facts. 

Businesses should therefore consider image rights when negotiating marketing and creative-services agreements. Among other issues, the agreement can address who is responsible for obtaining licenses, what representations the vendor makes about supplied content, whether the company receives sufficient rights to use that content, and whether indemnification applies if third-party materials generate an infringement claim. 

That contractual work can seem unimportant when the engagement begins. It becomes much more important after the company receives a copyright demand concerning an image supplied by the vendor. 

AI-Generated Images Create a Different Version of the Same Management Problem 

Generative AI has given businesses another source of inexpensive marketing images. It has not eliminated the need for an image-use policy. 

AI-generated content presents its own copyright, ownership, platform-terms, and infringement questions. Those issues are not identical to downloading a copyrighted photograph from the internet, but the operational lesson is similar: employees should not be left to make individual assumptions about whether every available image can safely be used commercially. 

A company's policy can therefore address both traditional and AI-generated content. The important point is establishing approved tools and sources, documenting material rights and restrictions, and creating a process for escalating unusual situations. 

Technology changes. The management principle does not: know where the content came from and understand why the company believes it has the right to use it. 

What Should a Business Do If It Receives a Copyright Demand Over an Image? 

Receiving a copyright demand does not mean the claimant is automatically entitled to the amount requested. 

The Food Town Mart case illustrates that point. The jury found infringement, but it also found no willfulness and determined actual damages of only $200. The court later denied the copyright owner's request for $69,255 in attorney's fees. 

A business receiving a demand should investigate before assuming either that the claim is worthless or that the demanded amount must be paid. 

That investigation can include determining where the image came from, who posted it, whether a license exists, what the applicable license permits, whether a vendor supplied the image, when and where the image was used, whether the claimant owns the copyright, what defenses may apply, and whether contractual indemnification is available. 

Evidence should also be preserved. Removing an image from public use may be appropriate in some circumstances, but relevant records about how it was obtained and used should be preserved. The objective is to understand the claim before deciding whether to defend, negotiate, seek indemnification, or pursue another resolution. 

The Real Cost of an Image Claim May Not Be the Damages 

The Food Town Mart litigation provides an unusual illustration of litigation economics. 

The copyright owner ultimately recovered $200 in actual damages. Yet the case proceeded through a jury trial and post-trial proceedings. The plaintiff later sought $69,255 in attorney's fees, while Jaber sought $50,250 after successfully defending the vicarious-infringement claim against him. The court denied both requests and ordered the parties to bear their own costs. 

The case therefore ended with a very small damages judgment after a substantial litigation process. 

That does not mean businesses should ignore small copyright claims. It means the economics of those claims deserve careful attention. 

For a small or mid-sized company, management time, attorney's fees, discovery obligations, uncertainty, and distraction can matter far more than the value of the photograph. Preventing the dispute in the first place may therefore be considerably more valuable than winning an argument about damages years later. 

Takeaways 

• Treat every marketing image as content that needs a source. A photograph appearing online is not automatically available for commercial reuse. 

• Do not assume lack of intent prevents copyright liability. The Food Town Mart jury found infringement even though it found the infringement was not willful. 

• Use approved image sources. Give employees and marketing vendors clear places from which they can obtain images for websites, blogs, email, social media, and advertising. 

• Keep licensing records. Preserve licenses, invoices, permissions, subscription information, and other evidence showing why the business has the right to use an image. 

• Address vendors contractually. Marketing, website, and creative-services agreements should address ownership, licensing responsibility, third-party content, and appropriate risk allocation. 

• Do not assume fair use will solve the problem. Fair use is fact-specific, and the jury in this case rejected it. 

• Investigate copyright demands before responding. Ownership, licensing, defenses, damages, indemnification, and the actual circumstances of use can materially affect the appropriate response. 

• Consider the economics of prevention. A single Facebook photograph generated years of federal litigation even though the final damages judgment was only $200. 

The broader lesson is not that every company needs a lawyer reviewing every image before publication. That would be impractical for most businesses. 

The better objective is operational: create a system in which the people producing marketing content know where they can obtain images, understand which sources are off limits, and preserve enough information to demonstrate the company's rights if a question arises later. 

Klemchuk advises businesses facing copyright infringement claims and other intellectual property disputes, including disputes involving photographs, online content, marketing materials, and third-party vendors. 

Frequently Asked Questions About Using Images in Business Marketing 

Can a Business Use an Image It Finds on Google? 

Finding an image through a search engine does not by itself give a business permission to use it. The company should determine the source of the image and whether it owns, licenses, or otherwise has a legal basis to reproduce or display it. 

Is Giving Credit to the Photographer Enough to Avoid Copyright Infringement? 

Not necessarily. Attribution and permission are different issues. Identifying the photographer does not itself create a license to use a copyrighted photograph. 

Can a Business Be Liable If an Employee Posts a Copyrighted Image Without Permission? 

Potentially. Liability depends on the circumstances, but the fact that an individual employee selected or posted the image does not necessarily insulate the business from an infringement claim. 

Is Using a Copyrighted Photograph in a Blog Post or Social-Media Post Fair Use? 

It depends on the circumstances. Fair use requires a fact-specific analysis, and commercial use of an image in marketing content is not automatically fair merely because the image appears within a larger blog post, website, or social-media post. 

What Records Should a Business Keep for Licensed Images? 

Businesses should consider retaining records that establish the source and scope of their rights, such as licenses, invoices, subscription records, permission emails, photographer or vendor agreements, and relevant licensing terms. The appropriate documentation depends on how the image was obtained. 

Additional Reading 

• Defending Against Photograph Copyright Troll Infringement Cases — Discusses practical steps businesses can take after receiving a copyright demand involving a photograph, including investigation, evidence preservation, defenses, and possible vendor indemnification. 

• Copyright Troll Defense: Insurance Coverage for Copyright Infringement Claims — Examines whether insurance may provide a defense or coverage when a business receives a copyright infringement demand involving online content or marketing materials. 

• Copyright Trolls: How Businesses Can Respond to Image Infringement Demands — Provides additional guidance for evaluating demands involving photographs and other copyrighted content used online. 

About the Firm 

Klemchuk is a litigation-led, full-service intellectual property law firm serving sophisticated businesses, entrepreneurs, and investors. We help clients protect, commercialize, and enforce valuable intellectual property by combining deep IP experience, practical business judgment, senior-level relationships, and trial-ready litigation capability. 

This article is provided for informational purposes only and does not constitute legal advice. The appropriate legal strategies depend on the facts and applicable law. The law evolves and this article likely will not be edited to reflect any changes in the law. The laws between jurisdictions also conflict. For all these reasons, you should hire a competent attorney to provide legal advice and you should not rely upon this article for any reason.