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Panic Stations! Lawsuit threat for using an image
Must I pay?
BeeDeeDubbleU




msg:3181268
 12:35 pm on Dec 7, 2006 (gmt 0)

A couple of years ago I was offering websites built with a commercial shopping cart. As far as I can remember at this time I used a thumbnail size shopping cart icon from one of their sites. I no longer offer this cart but the image was still used twice on my site basically because I forgot to remove it. I appreciate that I should not have used it in the first place but I did.

This morning I received a letter from a solicitors in London sent on behalf of Corbis and demanding that I pay 2,385.25 for the use of this image. This is clearly an extortionate amount for a small icon. They say it is to cover the period from Dec 2005 to Dec 2006 and that I can pay more if I want to use it beyond this date.

They also say that if I do not pay by 18 December they will instruct their client to commence legal proceedings against me ... seek legal costs, etc. They make reference to "English Law" but I am based in Scotland where we have a separate legal system. I obviously extremely worried because this is a lot of money to me and I don't know where I stand on this.

Has anyone else been in this situation? Must I pay?

I would very much appreciate any advice.

Edited: Spelling

[edited by: BeeDeeDubbleU at 12:39 pm (utc) on Dec. 7, 2006]

 

guitariststuff




msg:3196358
 7:45 pm on Dec 21, 2006 (gmt 0)

I feel for you BeeDee, I have an image of a guitar which looked really cool and it was saved on my computer, I dunno where it came from but I just added it to my webpage in the top corner to brighten my page up, now I am seriously considering taking the image down incase I get a crazy letter saying that I have infringed copyright! The rubbish thing is loads of people have images on websites and obviously not all of them have the right to display them, I dont think its fair how they just pick on random people, maybe they know how much your website is worth and are therefore trying to get some money from you, i agree with the whole scare thing.

BeeDeeDubbleU




msg:3196532
 9:56 pm on Dec 21, 2006 (gmt 0)

maybe they know how much your website is worth and are therefore trying to get some money from you

I don't think they do know. If they did they would not have asked for that amount! ;)

BeeDeeDubbleU




msg:3197059
 11:43 am on Dec 22, 2006 (gmt 0)

now I am seriously considering taking the image down incase I get a crazy letter saying that I have infringed copyright!

I would recommend that you remove it. I buy most of my images at $1.00 each from the big stock companies and there is no real need to take a chance on a copyright infringement.

Having said that, I spent the last couple of weeks going through all my work and my client's sites checking images on these. Some of them go back almost five years so it was a big job and I found about 80 images, which I was 99.9% sure were legal but I could not remember where I got them.

They all had to be replaced and I have now put a system in place that will allow me to track this in future.

BeeDeeDubbleU




msg:3197177
 1:58 pm on Dec 22, 2006 (gmt 0)

UPDATE!
--------

Today's mail just arrived and with it came a second letter from the lawyers. This is quite worrying and I could do without it right now.

In this they say that they are disappointed that I did not respond to their original demand. They also say that if they do not receive the requested retrospective payments by 2 January 2007 they will be advising their client to commence legal proceedings against me "without further recourse" to me.

They also used the "without further recourse" stuff in the original letter, which now that they have got back to me means that they were lying.

The language is now "we accordingly invite you one last time, etc." They are also trying to put the frighteners on me by stating that if they instigate proceedings they will be "seeking legal costs, which are likely to be in the region of 5000".

Can anyone clarify the law with regard to the small claims court? As I understand it if the amount being claimed is under 5K they should use the small claims court but are they obliged to do so or can they take me to higher court where higher legal fees would be claimed.

I am thinking of contacting them this time and telling them to stop harassing me, that I don't have the money and that they will just have to take me to court. Opinions?

hunderdown




msg:3197402
 5:16 pm on Dec 22, 2006 (gmt 0)

Talk to a lawyer.

If you don't want to do that, then I would not write they will "just have to take me to court." Overly and unnecessarily confrontational.

If you write to them--and I'm not sure that is a good idea--I would be as polite as possible but be firm about a few key points: that you didn't know that you were infringing, that you immediately removed the offending image, and are otherwise willing to cooperate. But not to pay them, as you don't have the money anyway....

BeeDeeDubbleU




msg:3197550
 8:43 pm on Dec 22, 2006 (gmt 0)

Hunderdown these were not the actual words that I would use. I appreciate that getting cheeky with them won't help.

BigDave




msg:3197649
 10:20 pm on Dec 22, 2006 (gmt 0)

You might want to notice that they are using some weasel words. They are not saying that they will "take you to court", they say that they will "advise their clients" to take you to court.

Those words are meant to scare you.

In most countries, it is against the law for someone to say that they are going to sue you when they have no intention of doing it.

You might want to do a search on the law firm. In the US a lot of the most incompetent lawyers become bill collectors that make their money sending out "legal notices" and running call centers to harass debtors. They threaten lawsuits all day long, but if you check the records, they have never actually filed one.

BeeDeeDubbleU




msg:3198012
 9:48 am on Dec 23, 2006 (gmt 0)

You might want to do a search on the law firm.

They are a massive company with a presence in most countries Wordwide who bill themselves as the World's leading global law firm. This of course does not prevent them from engaging in practices like these.

Essex_boy




msg:3198106
 1:24 pm on Dec 23, 2006 (gmt 0)

This of course does not prevent them from engaging in practices like these. - More likly to make you sit up and listen.

guitariststuff




msg:3198568
 12:32 am on Dec 24, 2006 (gmt 0)

"They say it is to cover the period from Dec 2005 to Dec 2006 and that I can pay more if I want to use it beyond this date".

This is from first post, first of all how did they know that you had the image up in December 2005, and if they did shouldnt they have contacted you then rather than waiting for a year. Is that not unfair? I mean this is an exaggeration but isnt it like taking a book out of the library then getting a letter 40 years later with a fine of 20,000 saying that you never returned it (something like this has happened btw!)?Why didnt they tell you a week after the book was overdue? Is it not to your advantage the fact that they knew you were breaking the law yet they decided not to tell you so you would have to pay a larger fine. I mean say they told u early and you only had it up for a couple of days, wouldnt the fine have been tiny? I must be real stupid and missing something here... or I have noticed something?

P.S. My idea here is totally out the window if fines are in batches of one year periods for image infringements even if you only had it up for a e.g. day.

BeeDeeDubbleU




msg:3198742
 10:09 am on Dec 24, 2006 (gmt 0)

They say that one year is Corbis's shortest period of lease in these cases.

Syzygy




msg:3198818
 1:27 pm on Dec 24, 2006 (gmt 0)

Rights-managed images are usually licensed for 12 months. Royalty-free images are yours to keep forever in exchange for a one-off fee.

The fee's they want to charge you bear no real relation to actual image cost. Well, not unless they're charging you for a global licence on a super hi-res file. You will be using a lo-res version of the image - which, had you paid for it, would have cost around 100 as a royalty-free image, and maybe a couple of hundred at most for rights-managed.

You could search Corbis for the actual image and find out what the fees are and on what licence it is being offered. Alternatively, as many libraries are merely resellers of others' images, why not search through some of these resellers and see if you can find the image there. If it is being resold by others, who's to say that you didn't buy it from one of them...

You can find a list of picture libraries at the website of the British Association of Picture Libraries and Agencies (BAPLA).

Syzygy

Essex_boy




msg:3198886
 3:39 pm on Dec 24, 2006 (gmt 0)

Id still sit this one out, wait wait and wait.

Under 5K they use the county courts and only IF the judge decides that they have been resonable about the matter will he or her grant the claim it is not a foregone conclusion.

They know that and hope you dont, ive come across judges who have had teh righthump with one party and have made orders that they do not have the power to make, eg Get your hair cut (this has happened)as part of the order.

If your that worried start looking to transfer your bank accounts offshore and changing the ownership details on your cars and other registerable possessions.

CCJ's are easy to avoid paying if you do the right things.

BeeDeeDubbleU




msg:3200701
 10:38 am on Dec 27, 2006 (gmt 0)

I am leaning towards replying this time. I think I will just tell them that I cannot pay, they must do what they will and that I am prepared to face the consequences.

commanderW




msg:3201079
 7:28 pm on Dec 27, 2006 (gmt 0)

BBW - Only talk to them through a lawyer. If you say anything to them, they'll use it against you. I don't see that you can throw yourself at their mercy. A lawyer knows how to deal w/ laws. You may find that, if you don't admit to anything, they can't touch you as long as certain forms are filled out. You can't deal w/ lawyers anymore than you can defend yourself in court. The law has nothing to do w/ common sence or reason or mercy.

If you say a word to them without a lawyer, you'r shooting yourself in the foot. Besides, they don't care what you have to say ( unless you'r confessing Or offering to pay.). They're after money, & they'll go away when they are confronted w/ legal proof that they can't get it.
If you have to reply at some point, it can only be in the form of legal paperwork. Nothing else, nothing less.
You may find free legal advice on how to proceed right now, before you are taken to court, Then discover they can't touch you anyway & just sit it out. But If you talk on your own, you'r already screwed!

BigDave




msg:3201422
 2:49 am on Dec 28, 2006 (gmt 0)

I agree with commanderW. If you do reply, do not say anything that can be considered a confession, even remotely.

BeeDeeDubbleU




msg:3201567
 9:05 am on Dec 28, 2006 (gmt 0)

Confession? No way. Like many people in my situation right now I don't accept that I have knowingly done anything wrong. I think that they may have a hard job proving that I did take the image knowingly because I did not do so.

I don't know if I am reading this correctly but UK people finding themselves in my shoes (and I already know that there are others) may be interested in the following information from the UK Copyright, Designs and Patents Act 1988 (c. 48) article, which states ...

11.(1) The author of a work is the first owner of any copyright in it, subject to the following provisions.

(2) Where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.

I would be very surprised if the original author of the work was an employee of Corbis so they will not be the first owner. The first owner can of course waive her/his rights but must consent to this in writing. Corbis have offered no proof that they actually own the image other than saying that they do.

Also, as quoted earlier ...

97.
(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(2) The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to

...(a) the flagrancy of the infringement, and

...(b) any benefit accruing to the defendant by reason of the infringement, award such additional damages as the justice of the case may require.



I do believe in UK Justice and even if a judge did find against me I would be very surprised if he awarded them the clearly extortionate damages they are claiming. As stated in UK law, the damages take into account the flagrancy of the infringement (the use of one small icon?) and any benefit accruing to the defendant (nil?)

Syzygy




msg:3201571
 9:35 am on Dec 28, 2006 (gmt 0)

I would be very surprised if the original author of the work was an employee of Corbis so they will not be the first owner. The first owner can of course waive her/his rights but must consent to this in writing. Corbis have offered no proof that they actually own the image other than saying that they do.

It is highly likely that the 'original author' may well have been employed specifically by Corbis to produce the work. All photo libraries commission freelance photographers to create work for them. If the work has not been specifically created for them, then, as you say, copyrights to images would have been passed to the library upon the purchase of the works: photographers are actively encouraged to sell/license 'excess' images within their portolio's to photo libraries.

Nice try, but I think you'll find that Corbis, et al, have these issues wrapped up tight.

Good luck, whatever you decide to do.

Syzygy

[edited by: Syzygy at 9:37 am (utc) on Dec. 28, 2006]

BeeDeeDubbleU




msg:3201588
 10:20 am on Dec 28, 2006 (gmt 0)

Nice try, but I think you'll find that Corbis, et al, have these issues wrapped up tight.

Please do not dismiss this as a "nice try". I was not claiming that they don't own the rights to the image.

My point was that they are sending out these invoices without offering proof that they are the copyright holders. Any court will require this proof and since they are making this claim on me I think I am entitled to see it. I cannot find the image in Corbis's database.

Would you happily pay a random invoice to someone for the use of a service when you don't know if they actually own it or if they are legally entitled to issue the bill?

Beagle




msg:3201811
 3:41 pm on Dec 28, 2006 (gmt 0)

My point was that they are sending out these invoices without offering proof that they are the copyright holders. Any court will require this proof and since they are making this claim on me I think I am entitled to see it. I cannot find the image in Corbis's database.

This is the kind of thing that might be an effective legal argument if used properly. But if used in any communication outside of legal documents and without legal knowledge could, indeed, be shooting yourself in the foot, because it gives them a chance to "fix" things before they begin formal legal proceedings. An attorney used this kind of argument for me when company A (to which I was making payments) was bought by company B, which then demanded the payments I had already made to company A - the argument being that the complaint didn't properly identify the plaintiff. But even though I actually pointed out the argument to the attorney, I couldn't have responded with the correct legalese without his help.

[edited by: Beagle at 3:42 pm (utc) on Dec. 28, 2006]

BeeDeeDubbleU




msg:3201987
 5:57 pm on Dec 28, 2006 (gmt 0)

I'm sorry but it's easy to recommend that I enlist the help of a lawyer for this as several people have already done. I am very well aware that a lawyer could probably help but my dilemma is that their fees are likely to cost me just as much as the claim (perhaps more) so I am afraid that this is not really an option at this stage.

I shall not be paying this invoice. If they decide to take me to court I believe that I can demonstrate that I was not aware that the image was theirs and that I did not knowingly infringe any copyright. According to UK law, even if the court ruled against me the damages are related to the flagrancy of the offence and the benefits accrued (nil).

I can demonstrate that the image was removed immediately and replaced by one that cost me $5 for unlimited use on my website. I am not a judge but put yourself on the bench and tell me how you would rule in this case?

Added:
it gives them a chance to "fix" things before they begin formal legal proceedings.

As I said earlier the say that they are the World's leading global law firm and their presence in all the major countries suggests that they are up there. I would think that we have to assume that they already know what they are doing.

[edited by: BeeDeeDubbleU at 6:03 pm (utc) on Dec. 28, 2006]

Fortune Hunter




msg:3202006
 6:17 pm on Dec 28, 2006 (gmt 0)

BeeDeeDubbleU:

I am in America and not a lawyer, but I do know a thing or two about lawyers and their tactic having friends who are lawyers and victims of them. I also have a few clients that are lawyers and have read several legal guides and court docs over the years. Having said all that here are a few questions observations I would have...

1. Did the letter come certified mail? If not, how do they know you even got it?

2. If you didn't actually get the letter how could you have taken any type of action?

3. Therefore I wouldn't do anything to alert them to the fact you actually got the letter.

4. In the U.S. they have to prove actual damages in a court of law to get a judgement against you. It isn't enough to simply say you did or did not do something that something has to actually cause monetary damages that can be provide...more difficult than it sounds, especially in a case like yours.

5. The amount is very small and given that most attorneys bill out $200 or more per hour ask yourself how many hours it would actually take an attorney to fill out the paperwork, go to court, prove a case, and get a judgement? My guess would be a lot more than they hope to collect. Do you think they will actually take legal action when they will lose money doing so?

6. In the U.S. the debt you are talking about would have to be filed in small claims court. Small claims court can award a judgement, but that only amounts to a "hunting license" for the plaintiff. They still have to figure out how to collect from you.

7. Small claims court is also very easy for a non-attorney to go in and defend yourself should it come to that. Believe me it doesn't take much effort to muck up small claims case against you to the point that they can't get a judgement against you.

7. Sending scary letters is easy. Filing a lawsuit, winning a case and collecting judgement is another matter entirely. They are long way from collection.

From my perspective this appears to be a simple "legal mugging" they send scary letters and threaten all day long, but when it comes down to brass tacks they can't do anything. Most likely they are getting some type of percentage of those people that pay it and therefore it makes sense to try and shake you down like the mob would.

BeeDeeDubbleU




msg:3202622
 8:58 am on Dec 29, 2006 (gmt 0)

I understand that in the US there is a "presumption" that mail has been delivered provided that is it properly stamped and addressed, etc. I have not so far been able to determine what the law is here in the UK in this regard but I would not be surprised if it was something similar.

In the UK we also have a small claims process and the laws seem quite similar. We can also defend it without a solicitor. If it did go that far I would be banking on the judge being a fair minded individual who would see this for what it is.

Sending scary letters is easy. Filing a lawsuit, winning a case and collecting judgement is another matter entirely. They are long way from collection.

That is what I am hoping.

BigDave




msg:3203439
 12:40 am on Dec 30, 2006 (gmt 0)

Actually, in the US the presumption is that you did not receive the letter unless they get a signature from you, or proof that the document was properly "served". A regular first class letter is useless in court.

When I was talking about "confessing" to anything, you obviously would fail. You started talking about "knowingly". Whether or not that is the law of your land, doesn't really matter. What I meant was do not confess to having ever used their work. Don't deny it but don't admit to it either.

Yes, if they actually can prove that you received their letters, I might consider replying with a demand for evidence, but I would never admit to having used the image or even understanding what image they are referring to. If they have no proof that you received the letter, do not get back to them.

By the way, are you sure that the small claims process applies in this case? In the US, all copyright claims are heard by US district court. The value of the claim does not matter. I'm not saying that it is the same where you are, but in most places copyright is handled differently.

BeeDeeDubbleU




msg:3203667
 11:14 am on Dec 30, 2006 (gmt 0)

By the way, are you sure that the small claims process applies in this case?

I am not sure about the law in this respect. I know that in England the small claims process is used for debts below 5K. What I don't know is if it must be used or can the plaintiff opt to take the case to a higher court?

Actually I decided against replying. I am awaiting their next move.

Beagle




msg:3203743
 3:37 pm on Dec 30, 2006 (gmt 0)

The following is just from my one personal experience, so very definitely YMMV.

I'm sorry but it's easy to recommend that I enlist the help of a lawyer for this as several people have already done. I am very well aware that a lawyer could probably help but my dilemma is that their fees are likely to cost me just as much as the claim (perhaps more) so I am afraid that this is not really an option at this stage.

If it comes to it, you might want to check what you have available. I learned everything I needed to know for my case in one session that cost less than 50 USD through a local American Bar Association referral program. Maybe things like that are more available in the U.S., but it can't hurt to check. If you have a law school nearby, they might have a program. If you have a day job, see if you have any legal aid in your benefits package.

Having said that, I didn't have my one session until after suit had actually been filed; at that point, it was important to get all the papers filed correctly and on time, and the attorney was very helpful with that (I still had to fill them out and file them, as he wasn't "my" attorney, but he made sure I knew how to avoid any errors). So you may not have come to that point, yet, and maybe never will.

FWIW, I was dealing with one of the largest credit card companies there is, and they'd made mega mistakes. Remember it's not the entire law firm that's handling your case.

Essex_boy




msg:3203791
 5:13 pm on Dec 30, 2006 (gmt 0)

What I don't know is if it must be used or can the plaintiff opt to take the case to a higher court?- Not immediatly, you must exhaust all possible avenues before going higher.

BeeDeeDubbleU




msg:3204502
 5:21 pm on Dec 31, 2006 (gmt 0)

So they must take me to the small claims court in the first instance?

This is crucial to my situation because in their last letter they threatened me with the possibility of being claimed for legal expenses of 5K in addition to the original amount claimed. Maximum expenses in the small claims court are 100. If this is an idle threat then they could be breaking the UK harassment laws themselves.

hunderdown




msg:3204544
 7:13 pm on Dec 31, 2006 (gmt 0)

I think you really need to settle the question of whether or not small claims court is where your case would go if they proceeded.

Your statement:
I am not sure about the law in this respect. I know that in England the small claims process is used for debts below 5K. What I don't know is if it must be used or can the plaintiff opt to take the case to a higher court?

Is this your only basis for thinking that your case would go to small claims? Seems to me that if it's "used for debts below 5K," then it would NOT be the venue. They aren't trying to collect a debt. They are making a claim of copyright infringement.

if you can't settle this question through online research--is there a UK equivalent of our Copyright Office, with an informational web site?--then surely it's worth a brief consultation with a copyright lawyer.

BeeDeeDubbleU




msg:3204885
 10:09 am on Jan 1, 2007 (gmt 0)

I think you really need to settle the question of whether or not small claims court is where your case would go if they proceeded.

You are correct and I will be seeking assistance with this when the appropriate authorities get back to work this week.

They aren't trying to collect a debt. They are making a claim of copyright infringement.

This would also have to be ascertained. As you say, their communication is a claim but it is being made through an invoice and it is entitled, "Payment for Use of Corbis' Images". At this stage I am assuming that failure to pay an invoice would be treated as an outstanding debt but I may be wrong.

SemperFidelis




msg:3204991
 2:37 pm on Jan 1, 2007 (gmt 0)

BTW, the link above doesn't work unless the period at the end is removed. FYI!

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