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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]

 

briggidere




msg:3181281
 12:43 pm on Dec 7, 2006 (gmt 0)

I am NO lawyer, but i would just remove it and leave it at that.

As the amount they are trying to recover is quite small and their costs to proceed are not going to be cheap, they'd probably just drop it.

How can they justify the charges for the use of the icon anyway? Is it that they used to charge you that to be able to sell their cart in the 1st place?

rj87uk




msg:3181316
 1:32 pm on Dec 7, 2006 (gmt 0)

For sure I would get legal advice from a lawyer based in Scotland asap. Also confirm you have removed the image from your website and that you are seeking a lawyers advice on the matter.

trillianjedi




msg:3181317
 1:36 pm on Dec 7, 2006 (gmt 0)

Yes, speak to a Scottish lawyer ASAP. This is not the place to come for legal advice.

Good luck with resolving it.

BeeDeeDubbleU




msg:3181357
 2:28 pm on Dec 7, 2006 (gmt 0)

This is not the place to come for legal advice.

I was not seeking legal advice. I was just seeking help of any kind. I seem to remember there was a similar thread a few months ago but I cannot find it.

Syzygy




msg:3181483
 4:20 pm on Dec 7, 2006 (gmt 0)

I vaguely recall such a thread in the Supporters Forum some months ago, although the scenario then involved the almighty Getty.

Did you actually furtively download and use a comping image from the photo library?

Syzygy

BeeDeeDubbleU




msg:3181491
 4:31 pm on Dec 7, 2006 (gmt 0)

I cannot really remember where I got it. I think I may have taken from a shopping cart vendor's site when I was offering their cart as a solution.

BigDave




msg:3181630
 6:40 pm on Dec 7, 2006 (gmt 0)

I can't say for sure about Scotland, but in the United States it would almost certainly be thrown out given that you have put it up while it was legal for you to do so, and you took it down as soon as you were notified.

I can't believe there are people going around worrying about a frigging shopping cart icon.

No matter what, don't pay the extortion up front. Contact a Scottish attorney, and I bet they can make the trouble go away in short order for a lot less money.

jtara




msg:3181638
 6:57 pm on Dec 7, 2006 (gmt 0)

To clarify, Corbis is a seller of stock photography images, etc.

Presumably, the seller of the shopping cart software was distinct from Corbis, and (hopefully) licensed the image for use in their product.

A couple of thoughts (to discuss with your lawyer...):

(1) DMCA (or the EU equivalent - DMCA was as a result of an international treaty). I don't think they can do this. I think you are simply required to remove the image after proper notification that you are in violation.

(2) Do you still have the right to use the shopping cart software? If so, you may still have the right to use the image, which is just part of the shopping cart software.

(3) Did the seller of the shopping cart software actually license the image in the first place? Not saying this gets you off the hook, but perhaps Corbis can be diverted to landing bigger fish, will be appreciative for the tip, and drop their effort with regard to you.

It's kinda scarey that any time you install some sofware package you have bought (or even moreso, open-source software), you really have no idea where images that are part of the package come from, or whether they are properly-licensed. And you could be liable for damages, or at least be extorted for such.

BeeDeeDubbleU




msg:3181664
 7:25 pm on Dec 7, 2006 (gmt 0)

given that you have put it up while it was legal for you to do so

From what they say I am not sure where I stand. I cannot even remember where I got the image. I was affiliated to two or three companies at the time and as far as I remember I picked it up from one of their sites thinking that it would be OK.

Their sites have since been revamped and I cannot find the original now.

BeeDeeDubbleU




msg:3181672
 7:28 pm on Dec 7, 2006 (gmt 0)

It's kinda scarey that any time you install some sofware package you have bought (or even moreso, open-source software), you really have no idea where images that are part of the package come from, or whether they are properly-licensed. And you could be liable for damages, or at least be extorted for such.

I agree. How many of us keep track of the source of the thousands of images that we use over the years?

This is an absolute nightmare. I have spent the whole day going through old websites to ensure that there is no more of this. I have had to replace about fifty images whose source I am not sure of.

BeeDeeDubbleU




msg:3182514
 3:14 pm on Dec 8, 2006 (gmt 0)

Further research has shown that this claim is most likely what is becoming known as "spamigation", the process of issuing proceedings against people who they find using automatic means.

An examination of the letter I received shows that almost every paragraph is generic and the signature is not a person but the name of the legal company. This "signature" is actually a photocopy. It looks like this letter could have been produced without any human input.

Anyone heard of this before?

jtara




msg:3182528
 3:38 pm on Dec 8, 2006 (gmt 0)

This is a very common occurence among Amazon affiliates.

Amazon permits their affiliates to use product images from their website. And Amazon has explicit agreements in place with the publishers and manufacturers.

But affiliates sometimes gets violation letters from particular agressive copyright holders, and some are very stubborn about not backing down. Amazon does go to bat for their affiliates, but you can imagine it can be a nightmare process the first time around.

Syzygy




msg:3182538
 3:45 pm on Dec 8, 2006 (gmt 0)

Further research has shown that this claim is most likely what is becoming known as "spamigation", the process of issuing proceedings against people who they find using automatic means.

It looks like this letter could have been produced without any human input.

Most companies these days have automated systems issuing forth paperwork. Remember, someone tracked you down and someone else probably pressed the button that's set these litigious wheels in motion.

Seen that solicitor yet?

Syzygy

Essex_boy




msg:3184322
 3:47 pm on Dec 10, 2006 (gmt 0)

Take down your icons and bin teh letter

BeeDeeDubbleU




msg:3187940
 8:46 pm on Dec 13, 2006 (gmt 0)

Note: I am not a solicitor and nothing that follows can be considered to be informed legal advice. It is however worth keeping people up to date on this because it is likely that others in these forums will be affected.

My latest research into this problem has shown that Getty have been sending out similar threatening letters to people all over the world so Corbis my just be getting in on the act. Getty are also trying to get people to pay extortionate amounts for unauthorised use of images. Like Corbis they do not use "Cease and Desist" beforehand.

Several forums have sprung up on the 'net about this and there is talk of people getting together to start a class action against them.

In the UK the general consensus seems to be that you just ignore it until they try to take action. It seems that if the "debt" is under 5K they must take you through the small debts court where the maximum costs payable are 100. If this is true (can anyone confirm?) it may be worth sitting it out to see what happens and that will be my approach for the moment.

I have spoken to a lawyer but he did not seem very convincing. Also getting a lawyer to defend this may cost me more than Corbis are claiming through their agents.

It is also worth pointing out that the UK Copyright, Designs and Patents Act 1988 (c. 48), article states ...

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.

Apparently it is up to the plaintiff to prove that the defendant did know that there was a copyright on the image .

Syzygy




msg:3188520
 11:42 am on Dec 14, 2006 (gmt 0)

Several forums have sprung up on the 'net about this and there is talk of people getting together to start a class action against them.

Class action over what? Being charged for stealing someone elses images?

...maximum costs payable are 100...

Remember that relates only to court costs and not the amount claimed by the plaintiff. (Note that I am not qualified to give legal counsel and am not actually doing so.)

Apparently it is up to the plaintiff to prove that the defendant did know that there was a copyright on the image.

I anticipate that that may be a useful line when it comes to orphan works and images presumed to be in the public domain (note previous disclaimer about legal advice).

My understanding is that images are either fully protected or are fully in the public domain and "ignorance is no defence" is the usual line spun by the courts...

Now that the image has been removed and legal advice sought, I, dependent upon that advice, would be inclined to wait and see if any further steps are taken (same disclaimer applies about my position to provide legal advice...).

Syzygy

BeeDeeDubbleU




msg:3188621
 2:39 pm on Dec 14, 2006 (gmt 0)

Class action over what? Being charged for stealing someone elses images?

Yes. Several of the people involved got the images from other sources but Getty still say they are liable.

Actually I would be very surprised if there was a single person in this forum who is involved in web design and that has not knowingly or otherwise used an image illegally. Most of us are quite naive when we get into this business and it does happen. I thought I was squeaky clean until this happened. Did you know that you can be pursued for using a tiny button image belonging to someone else? The size of the image is immaterial.

This situation has opened up a whole new can of worms.

* Since you started in the business have you never downloaded an image, a graphic or a background from a "free" image or clip art site? The images there could have someone else's copyright and if you use them you would be liable.
* What would you do if one of your clients got a letter from Corbis about an image you had used on their site?
* If you look at all your past work do you have a record of the source of all the images you have used?
* When you add an image to a website do have an audit trail in place so that in future you can prove where it came from?
* When you create a graphic do you embed a digital watermark in it? If not what is to stop someone else claiming that it is theirs and taking you to court?

Remember that relates only to court costs and not the amount claimed by the plaintiff.

I appreciate that but I also understand that damages are set in relation to the loss suffered by the plaintiff. How could they justify the loss of 2,400 because I used their shopping cart icon?

My understanding is that images are either fully protected or are fully in the public domain and "ignorance is no defence" is the usual line spun by the courts...

I am not so sure about that. As I said earlier the UK copyright act demands that ...

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.

Regarding your other point, I will be adopting a wait and see policy for the time being. ;)

andyll




msg:3188770
 5:45 pm on Dec 14, 2006 (gmt 0)

This situation has opened up a whole new can of worms.

You forgot a couple:

  • Do you have a list of all images used by 3rd party applications on your site (shopping cart, forums) and has the maker of that app stated in writing that they own those images.

  • Have you verified that all images used in iframes (ads, affiliates) are legal. (ask amazon affiliates about Sony)

andyll




msg:3188774
 5:45 pm on Dec 14, 2006 (gmt 0)

This situation has opened up a whole new can of worms.

You forgot a couple:

  • Do you have a list of all images used by 3rd party applications on your site (shopping cart, forums) and has the maker of that app stated in writing that they own those images.

  • Have you verified that all images used in iframes (ads, affiliates) are legal. (ask amazon affiliates about Sony)

BeeDeeDubbleU




msg:3188963
 9:51 pm on Dec 14, 2006 (gmt 0)

You're right Andy. Everything is fine until it happens.

Essex_boy




msg:3190379
 11:11 am on Dec 16, 2006 (gmt 0)

County court fees are around 100ish for small claims for me to file at work we pay 150 per shot, but thats for repossession hearings, then there enforcement cost at least a further 95.

A solicitors I recently hired cost 175 per hour, I was hit for 750 in total.

If they should take you to court, request that the case be heard in the furthest court from their offices (look it up on the court service website)- Pushes up the incentive for them not to take you to court.

Like I said they wont go any further.

BeeDeeDubbleU




msg:3190427
 12:32 pm on Dec 16, 2006 (gmt 0)

If they should take you to court, request that the case be heard in the furthest court from their offices

Can I do this?

My situation is complicated by the fact that I am in Scotland where small claims law is different. If it happens it may actually be to my advantage to go to England.

hermosa




msg:3190554
 4:16 pm on Dec 16, 2006 (gmt 0)

Can you please post an update about this one. I am now running into a similar problem form another company that did not identify they held copyright on an image. I think that this is a deliberate attempt to mislead the pulbic and threaten, harrass and extort funds from small businesses. I have just filed a complaint with the FTC. If these companies have hold copyright on certain images and the images are available for sale, then they need ot IDENTIFY them as such rather than attempting to extort funds from the public after the fact.

BeeDeeDubbleU




msg:3192557
 10:52 pm on Dec 18, 2006 (gmt 0)

I shall keep you posted with developments. Today was the day when I was supposed to have paid the 2,400 and I have not acknowledged or responded to their demand. I shall be waiting on them making the next move.

What I can tell you is that there is a thread on another forum that has been running since July with many people reporting that they had received similar demands. That's almost six months and AFAIK no one has yet been taken to court.

If they were confident that a UK judge would back them I think they would have gone ahead with this long ago. Just think how much more effective their tactics would be if they could add an example of a successful prosecution to their demands.

hunderdown




msg:3192922
 4:45 am on Dec 19, 2006 (gmt 0)

They may have no intention of taking anyone to court. Just shaking the trees to see which webmasters will panic and pay up.

BeeDeeDubbleU




msg:3193050
 9:00 am on Dec 19, 2006 (gmt 0)

to see which webmasters will panic

PANIC is a good word. When you live your life in a generally law abiding way and pay your taxes something like this can be extremely upsetting. While reading the thread on the other forum it is clear that several people have been seriously affected by it. One woman actually mentioned feeling suicidal. That's the way these demands affect many people and those who issue them know it!

We are not talking about pursuing hardened criminals here. It's just the penalties that these companies are trying to impose that makes it look that way. Most of the people affected were not aware that they were infringing copyright, myself included. In these circumstances a cease and desist would have been more appropriate.

I would suggest that anyone who is feeling smug about this does an audit on all the images that they have used over the last five years. Can you account for them all? If not you may be next. Corbis et al are now using more sophisticated methods of tracking this. Big brother is watching.

workertom




msg:3194762
 5:12 pm on Dec 20, 2006 (gmt 0)

I'd say you are guilty but its not worthwhile them prsuing you for all that is involved and for all the hassle and cost, and you may not be able to pay anyway, even if ordered to by a court. Worse case is that you end up paying the going rate for the image, what ever it would have been if you had bought them when you first used them.

Best solution is to take the images down and ignore Getty and Corbis. Don't contact them or get into any discussion with them or they will feel your fear and press harder. If they phone, deny receiving any letters. Do not give them an email address or fax number. If they send by registered post, refuse receipt. They won't take you to court or they will fill the courts in the lands for years.

I am not a lawyer.

BeeDeeDubbleU




msg:3195627
 9:42 am on Dec 21, 2006 (gmt 0)

Being a transparent kind of person my full contact details are on my website so they already have this.

BeeDeeDubbleU




msg:3195743
 12:52 pm on Dec 21, 2006 (gmt 0)

It is interesting to note that Corbis recently successfully sued Templatemonster and others for copyright infringement.

See, [pdnonline.com...]

Anyone who used an image from the Templatemonstersite could receive a similar demand to mine. If this applies to you cover your @ss!

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