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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]

 

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!

Essex_boy




msg:3204995
 2:42 pm on Jan 1, 2007 (gmt 0)

From what youve said I too think they are treating this as an unpaid invoice, which assumes that they have rights to the image, for use of the image as its a debt of under 5000 then its the small claims court judge that we hear the case.

However they can ask for REASONABLE costs to be added to the judgement, hence the threat of a further 5000 to be added, the funny thing is they dont know how much it will cost in terms of time to prosecute this case or even if a judge would award costs against you.

So Its a case of threaten, threaten and threaten some more.

Regards the delivery of that letter it is assumed that any letter has been delivered if it has not been returned to sender.

hunderdown




msg:3205028
 4:08 pm on Jan 1, 2007 (gmt 0)

I guess it depends on whether or not they first have to establish that they are entitled to collect from you by proving use of the image and copyright infringement.

Interesting. Small claims court would definitely NOT be the venue in the US, but it seems like it might be in the UK. Keep us posted...

BeeDeeDubbleU




msg:3205580
 11:26 am on Jan 2, 2007 (gmt 0)

It's still a holiday here in the UK today (although this is the deadline they provided). I shall be contacting both the Citizen's Advice Bureau and the Trading Standards Office tomorrow. I will keep you posted but at present I am willing to face the risk of going to court on this.

digicam




msg:3205736
 2:16 pm on Jan 2, 2007 (gmt 0)

Just to widen this topic slightly, it seems you are like quite a few other website owners who work from home who do not consider the legal side of their work - me included.

Is there any mileage in trading from a limited company, your own assets are ringfenced and only the company has any liability - it may be worth considering for the future.

Any other thoughts?

cheers.

Fortune Hunter




msg:3205759
 2:39 pm on Jan 2, 2007 (gmt 0)

In the U.S. we have a few options of using a corporation or "S" corporation for small business. Alternatively we can also use a hybrid called an L.L.C. (Limited Liability Company) which is hybrid of a corporation and partnership. In all cases they (if managed correctly) caprovide a barrier between you and your personal assets and creditors.

I think the same types of arrangements have to be available in England and may really help in situations like this, although not this one since it happened before you incorporated. Although it would probably be worth checking into for the future of your business.

I am not sure about the other comments posted indicating this would not be heard in small claims court in the U.S., while it is true that small claims court doesn't here copyright issues, this doesn't appear to be a clear cut copyright case.

It sounds like from previous posts that they aren't claiming copyright issues, per se, but rather a fee for the use of a copyrighted image. While it may sound like a subtle difference I do believe there is a difference.

In a copyright case, say I started reprinting a copyrighted book and started selling it. The owner is not going to charge me a fee to continue to violate his rights, rather he is going to sue me for copyright violation and claim damages. In this case they aren't claiming copyright violation and seeking damages, but a fee to continue to use the image plus compensation for past use. That by its definition is a debt and a debt this size would be tried in small claims court.

In any case the laws are different between both countries, but this still look like a legal shakedown and I would be very surprised if they actually take real legal action given the expense relative to what they can collect. It appears from what has been posted that this is simply a case of hoping you will pay so the firm sending the letters can collect their "commission" on beating you up.

If I were in your position I would make them work for it and not give in one inch. The more force they have to apply to get money the more likely they will just move on to easier prey somewhere else.

Fortune Hunter

[edited by: Fortune_Hunter at 2:43 pm (utc) on Jan. 2, 2007]

BeeDeeDubbleU




msg:3205972
 5:22 pm on Jan 2, 2007 (gmt 0)

If I were in your position I would make them work for it and not give in one inch. The more force they have to apply to get money the more likely they will just move on to easier prey somewhere else.

I hope this is true because as things stand I do not intend to pay their extortionate demand. Despite intensive searching I have been unable to find any record of a prosecution of an individual for this "crime". If this had happened I would have thought that there would have been many references to the case on the Internet.

This is not cut and dried. There are lots of issues involved with regard to the UK Copyright Act 1988. Today I noticed this other clause within the act regarding infringement of copyright by copying.

17.(1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.

(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form.
This includes storing the work in any medium by electronic means.

Assuming that storing it the cache of your PC is "electronic means" then by surfing the Internet we are all infringing copyright.

panacheweb




msg:3206147
 8:27 pm on Jan 2, 2007 (gmt 0)

BeeDeeDubbleU,

it sounds like you have english law on your side..

but, also you see the wording of any letter in the courts makes a big differance..

are they billing you with an invoice for past use and continued use or going after copyright infringement. Its one or the other, they cant have both, and if they want both then they have to prove losses and damages

Sure they can argue theft and copyright infringement, but they have to prove it.

As has been said the cost for them to collect that money in the end will cost more then the money they wanted..

make them work for it..

Was it signed by someone or appear to be a printed signature? Was there a name attached to it? Is the company real, and does that person even work there at all? How did they get your information to contact you? Question EVERYTHING!

Lets look at this logically.. for them to send that letter how much did it cost, for them to goto court, how much will it cost, and will it be worth it for them to goto court. How much will it cost you to goto court?

But they have to prove damages, and losses and that you knew what you were doing and that it was copywritten...

also find other british law cases on the SAME topic, and cases they were involved in.. open record is the great.. if you can find cases that set legal precident on the matter and you know for certain they could not win on their threats.

Then you could consider replying stating law and case law back in their faces and maybe they might reconsider.

Before freaking out and going off the deep end.. do some research, google may be hated but they are an elephant. Other people elsewhere may have discussed this same thing in other forums..

The BEST defence in anything is having the best offence, plan, and strategy in place.

MJ

BeeDeeDubbleU




msg:3206229
 9:44 pm on Jan 2, 2007 (gmt 0)

They are billing me for use of the image over the last 12 months, not for infringement and it was not properly signed. It was an image of a "signature", which was just the company name, not that of a real person.

BeeDeeDubbleU




msg:3207968
 2:40 pm on Jan 4, 2007 (gmt 0)

I have now found a legal company who are going to write them a letter on my behalf.

malachite




msg:3208728
 12:16 am on Jan 5, 2007 (gmt 0)

It was an image of a "signature", which was just the company name, not that of a real person.

BeeDee, you'll find most firms of solicitors send letters signed in this way. It doesn't mean the letter isn't properly signed or invalidate it.

It's actually quite a lengthy and expensive process (under English law) to go for breach of copyright, and is far easier to pursue fees (usually in the small claims court) for unauthorised use, which it seems is what is happening here.

Do take advice from your legal representative. The only caveat I would offer here is that if your solicitor is a general family solicitor and isn't an expert in IP law, he/she may not be experienced in handling this type of case.

Sorry to be a bearer of bad news, but Corbis plays nasty, and is extremely unlikely to let go of this.

Good luck.

BeeDeeDubbleU




msg:3209076
 8:57 am on Jan 5, 2007 (gmt 0)

Sorry to be a bearer of bad news, but Corbis plays nasty, and is extremely unlikely to let go of this.

Someone else said this. Do you have any personal experience? (Sticky me if required).

What surprises me is that if they are so tigerish in the pursuit of these claims I can find no evidence of this on the net. If they had been pursuing web designers successfully wouldn't it have been plastered all over the place?

iamlost




msg:3209772
 8:59 pm on Jan 5, 2007 (gmt 0)

Corbis Corporation (Bill Gates) has been noticeably litigious since about late 2002. In mid-2003 it filed suit against amazon.com and 25 vendors (the first big media notice), one of several dozen other suits that year (seeking up to $150,000 for each infringement). Note: Amazon ducked with a 512(c) safe harbour defense.

Last fall Corbis reached an out-of-court settlement with TemplateMonster (also Artvertex Inc, Callaway Alliance, Igor Lognikov, MyTemplateStorage.com, Template-Delivery.com, Template-Help.com, Template Tuning, Site2You.com and Web Design Library) and a 20-Million-$ judgement against Artvertex LLC, Artvertex Consulting, Ultravertex, Inverse-Logic, and Colman Alliance who appear to have vanished.

You may want to research that shopping cart to see if its maker/suppliers have been sued. If so, knowing the results could be beneficial.

You can easily locate basic info about the suit against Amazon. You really have to work at it to even find the names of the vendors involved. Small domains and their owners are 'not news-worthy' and mourned only by friends and relations.

Your post #:3188621 (second page of thread) is extremely pertinent and I hope that readers will learn to treat image content and copyright as equal in cost/value to text content and copyright.

If it weren't for a very heated conversation with my law-type-person brought on by news of Corbis vs. Amazon (at that time my images too were 'borrowed') I would likely now be receiving similar demands. Ave Domina.

BeeDeeDubbleU




msg:3210305
 11:02 am on Jan 6, 2007 (gmt 0)

I know about the high profile lawsuits. There is information on these all over the net but I can find no information at all about them taking small fry to court.

Small domains and their owners are 'not news-worthy' and mourned only by friends and relations.

I am not so sure about that. I am not talking about the stories being featured in the Washington Post or the Sun but I think we would have heard plenty about these instances on this and other forums. For example there are several current threads running on various forums. None of the many little guys who have been threatened have yet reported that they have been prosecuted. On one forum there is a thread that has been running since last July and as I say there have still been no reports of any prosecution.

To me this suggests that Getty and perhaps Corbis are wary about testing this in court against freelance web designers and private individuals with no resources. If they take someone to court and lose then they can forget any further actions. If they win they may still not get paid and they will get tons of bad publicity because I can assure you that if it happens to me I will be doing my utmost to generate this.

It does not matter whether they are right or wrong in law. Law often does not equate to justice and where would the justice be in charging someone like me the equivalent of $4,600 and $10,000 in legal expenses for inadvertently using a shopping cart icon on my website? I can't just pull $15K out of a hat so they would still have to fight to get anything from me. What do they want to do ruin people? (Now that is newsworthy).

You may want to research that shopping cart to see if its maker/suppliers have been sued. If so, knowing the results could be beneficial.

I am afraid that I have tried to do this but I honestly cannot remember for sure where I got the image. All I do know for sure is that I did not get it from Corbis. There is no way that I would have touched it had I known that it was theirs. It was not even a necessary part of my site. I replaced it with one I got for $5 but I only did this to prove a point.

Fortune Hunter




msg:3210476
 4:15 pm on Jan 6, 2007 (gmt 0)

The high profile law suits have one thing in common besides being high profile...

They are all companies with deep pockets. Lawyers will usually shoo away cases from people if they or the victim doesn't have deep pockets because they know the pay off is minimal. They know if the aggressor is not rich they will lose the stomach for a long drawn out fight and stop paying bills or constantly be scrutinizing bills for cost savings or finding ways to minimize what the attorney does.

On the other hand if the victim has deep pockets the attorney can work on "contingency" and the aggressor doesn't pay anything unless the attorney wins. The attorney knows that the victim will eventually pay either because they lose or because they settle out of court realizing a drawn out battle is costing them too much. The aggressor makes out because even if they only get 60% of the final settlement it was more than they had before and it cost them nothing out of their pocket.

Law is not about justice despite what people think. It is about who can pay the most. In this case the company is simply scaring people into paying up. Those that don't pay and don't have deep enough pockets to warrant serious action against will simply be ignored. Those that do will get both barrels of the lawsuit gun.

Fortune Hunter

malachite




msg:3210513
 5:08 pm on Jan 6, 2007 (gmt 0)

I know about the high profile lawsuits. There is information on these all over the net but I can find no information at all about them taking small fry to court.

Quite possibly because the "small fry" are frightened into paying up before matters even come to court. Unlike the larger companies with deep pockets, the little guy can't afford to take a chance on the outcome, and potentially ending up paying hefty costs on top of the unauthorised use fee.

I don't personally know of any webmasters/small businesses being taken to court by these guys, I only know of the high profile cases outlined by a previous poster.

All I do know, from another forum frequented by photographers - who tend to be on the opposite side of the fence to that which you find yourself on - is that Corbis has a reputation for vigorously pursuing unauthorised use.

BeeDeeDubbleU




msg:3210637
 7:34 pm on Jan 6, 2007 (gmt 0)

Quite possibly because the "small fry" are frightened into paying up before matters even come to court.

Of course. That is the whole object of the exercise and we all know that. We also know that several people have paid up. On the other forum a guy paid them a couple of grand because like many of us he **** himself because of their threats.

As soon as he paid they served him with another invoice for (if I remember correctly) 6K for another couple of images they found on his site. These are the sort of people we are dealing with here. Scruples? What are they?

If he had not paid the first invoice you can bet that he would not have received the second. The methods used by these guys are as down and dirty as they come.

malachite




msg:3210672
 8:34 pm on Jan 6, 2007 (gmt 0)

If he had not paid the first invoice you can bet that he would not have received the second. The methods used by these guys are as down and dirty as they come.

I agree with you. But, on occasion, I've been the photographer, and the writer, on the other side of the fence and have pursued cases against those who've used my work without permission. I do think there are instances when pursuit is valid - big publisher, and others when it is not - little guy where a shot across the bows and a takedown notice is sufficient.

I also suspect the reason why you're not finding much on cases against little guys isn't because none of them have been pursued by the likes of Corbis but more likely, because none of them wants to publicise the fact and invite the attentions of Corbis and others searching their sites for further infringements which, as you rightly say, will lead to more invoices and demands for money.

Just out of curiosity, have you actually searched Corbis's database to see how much this image would normally cost for a 12 month licence? Is it a rights managed image or a royalty-free image? Find out, and make your solicitor aware of the answer, it might just make a difference if matters do come to court. They seem to be wanting a hell of a lot for something so ordinary.

BeeDeeDubbleU




msg:3211103
 9:50 am on Jan 7, 2007 (gmt 0)

I also suspect the reason why you're not finding much on cases against little guys isn't because none of them have been pursued by the likes of Corbis but more likely, because none of them wants to publicise the fact and invite the attentions of Corbis and others searching their sites for further infringements which, as you rightly say, will lead to more invoices and demands for money.

The thread that I have been following on the other forum has several contributors who are all being pursued by Getty (not Corbis but the process seem to be essentially the same). They have all admitted to having used the images. A few of them took the images from "free" images on magazine cover disks and other third party sources. A few more got them with template sites they had purchased and can prove it. Some more (like me) cannot account for them and a few others just took them.

This thread has been running since last July and no one has yet been prosecuted. Most of the contributors in the thread who are kindred spirits have no reason not to report a prosecution.

Just out of curiosity, have you actually searched Corbis's database to see how much this image would normally cost for a 12 month licence?

It quotes 400 for one year for a low resolution image. As far as I can remember it is not royalty free and this is for a digital drawing of a shopping cart. I cannot for the life of me see anyone being willing to pay this amount under any circumstances. I replaced it with a more appropriate image that I got for $5.

hughie




msg:3212169
 3:55 pm on Jan 8, 2007 (gmt 0)

Hi Beedee

Just came across this, i posted on the original thread a few months back as i was stiffed for 1100+VAT for the use of 1 image on a clients website. We'd used an image off google for a tester and forgot to take it down when we went live.

I checked with a few legal minds (off the record) and went through the T&C's line by line but in the end coughed up.

My problem was that it was a client who the letter was directed at, but our fault the image was used, so i paid out. The "minimum 5k legal fees" was the bit that worried me the most.

I'm thankful that whilst it was a major pi**er, at least it wasn't bank breaking, and is a lesson learned.

If you're fighting it i would be very interested to hear how you get on.

good luck
hughie

[[EDIT - we were pursed by corbis not getty ]]

digicam




msg:3213209
 12:14 pm on Jan 9, 2007 (gmt 0)

You done me a big favour with this topic, at first thought I could not think of any such images on my site, then I thought about my site header - I had it designed by a guy in India for a few dollars - did he buy the images? - not a chance I bet.

I was going to redo it anyway so now I have a good reason to.

Is there any opinions about setting up a UK limited company to ringfence any liabilites such as this one - or indeed any others which arise in the future. I am very interested in doing this.

Also as a matter of course I never but accurate contact info on any of my sites - the whois is also random stuff aswell - you may argue this sort of thing does not achieve much but I sleep easier knowing people have a hard time finding out who is behind my site - although the site is legit there are too many loonies out there - both corporate lawyers and saddos.

cheers.

BeeDeeDubbleU




msg:3213320
 1:58 pm on Jan 9, 2007 (gmt 0)

It took me three weeks of going over all my clients' websites to ensure that there were no other instances. I do not steal images but there could have been another instance like this so they all had to be checked. This was an absolute nightmare!

I have had critics saying that I should not have used the image but when I did I thought it would be OK. Silly perhaps, but who has not done this in the past? This is a minefield. For example, if you receive a humourous email with a copyright image on it you are guilty of an infringement if you send it someone else.

Essex_boy




msg:3213794
 7:50 pm on Jan 9, 2007 (gmt 0)

inadvertently using a shopping cart icon on my website - Like I said earlier a judge would have to consider it resonable to award such damages.

BeeDeeDubbleU




msg:3213855
 9:03 pm on Jan 9, 2007 (gmt 0)

Agreed, but it is a bit of gamble.

BeeDeeDubbleU




msg:3221495
 9:56 pm on Jan 16, 2007 (gmt 0)

It is interesting to note that someone from Archive.org (Wayback Machine) has joined one of these discussions on another forum. He is concerned about the effect this will have on their operations and rightly so. I have removed all of my sites from Wayback as a result of this. I am virtually certain that all of my images are legal but I won't be taking the chance of this happening again.

callivert




msg:3223303
 7:54 am on Jan 18, 2007 (gmt 0)

well, BeeDeeDoubleU you seem reluctant to take the advice here, but I just want to repeat what many others have said: DO NOT CONTACT THEM. Never, ever talk to a hostile legal firm or lawyer yourself. Even lawyers themselves don't do this. If they get involved in a legal case, they hire someone else! Lawyers never even defend themselves in court!
If they call you, hang up. Your call is being recorded, and anything, anything at all can be used against you. Respond to nothing. If you get subpoena'd, give it to a lawyer.
And your attitude of "a lawyer will cost as much as the payout" is just plain wrong. Two or three hundred bucks to sit and chat with a good lawyer about your situation is money well spent, and if he can kill it off right there (highly likely), you got out of it cheaply.
Disclaimer: I'm not a lawyer, but I have a lawyer, and he is awesome.
To repeat again: writing to them, or calling them, or answering calls from them, will give them much more legal traction in court, regardless of what you actually say.

BeeDeeDubbleU




msg:3223322
 8:57 am on Jan 18, 2007 (gmt 0)

well, BeeDeeDoubleU you seem reluctant to take the advice here ...

Whatever gave you that idea? This was my first port of call when I was seeking advice and you have obviously not read the whole thread, particularly my last reference to this.

I have now found a legal company who are going to write them a letter on my behalf.

BeeDeeDubbleU




msg:3224657
 10:15 am on Jan 19, 2007 (gmt 0)

The letter has now been sent to them so we'll see what response it receives. I will post back here because I know that many others have been affected by this.

The small legal company that I am using have more than 20 cases on their books.

hunderdown




msg:3224870
 2:34 pm on Jan 19, 2007 (gmt 0)

We're cheering for you!

(Are any of the company's other cases farther along? Have they told you what they expect will happen?)

BeeDeeDubbleU




msg:3224939
 3:22 pm on Jan 19, 2007 (gmt 0)

I think they are all being dealt with simultaneously. Apparently there are some other companies that have received claims much higher than mine and the idea is possibly to defend this as a joint action.

nippon




msg:3225839
 11:27 am on Jan 20, 2007 (gmt 0)

Interesting discussion and one thing which cropped up in my mind was what if you are only linking to the graphic (i.e. being an bandwidth thief and using a direct link to the graphic etc on the other's server). Is this considered breaking copyright?

I'm not sure where the position is of Google et al regards their caching of images. Does anyone have an update about this?

Good luck BeeDeeDubbleU!

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