|Getty Image copyright issue|
A company I know have been issued with a demand from Getty for a couple of images that are on their website...
Obviously although unwittingly they have been there..
Has anyone got experience of this kind of issue ?
Getty are demanding a rediculous amount of money which this small company could not afford, even given they remove them, the demand states that is not sufficient and they still want $000's as a settlement demand..
Anyone got any advice on how to deal with this ? I've not had this kind of problem to deal with before myself and i'm not sure what best advice to give them.
If the pics are indeed Getty's, then they may be liable for Getty's fees.
There's little defense; when you use an image, you know it belongs to someone, and so using one of unknown heritage is risking a liability to that unknown owner. Once upon a time, few chased them, but recently, many image libraries are asserting their legal rights - and they have the technology to trace and prove those rights.
The only alternative to paying may be to challenge it in court ... which may end up being even more expensive.
I think this topic has come up before.
I did have a search but those date back to 2004/5 so was wondering if there was any more recent information.
Any advice would be appreciated as this would be crippling to the company, and although a little naive I don't think they deserve that...
Well worth reading!
Sounds like a real bummer for anyone using any image they feel like using any way they want. Yes, they deserve it.
Thanks for your help guys, I'll look in to it more.
I should perhaps add this is UK based !
[edited by: Lobo at 3:12 am (utc) on Oct. 4, 2008]
|If the pics are indeed Getty's, then they may be liable for Getty's fees. |
According to UK law Getty must prove both flagancy and benefit before a UK court will award them anything. They have been doing this now for more than two years and making a killing from people who take fright and pay them exorbitant sums without questioning them.
I can tell you that it is highly unlikely that you will have to pay anything. Despite their threats and harassment no one has yet been taken to court in the UK because they know full well that they don't have a case. This has been and is being discussed on several forums on the internet and it is beginning to be featured in the press.
What Getty is doing is barely legal and they know it. It is significant that they also consistently refuse to provide proof that they own the copyright. Personally I think that in some of the cases they would be hard pushed to prove that they do.
It's interesting that there seem to have been no court cases so far, and I agree that it's weird that there's been no attempt to demonstrate ownership. Very weird. However, their success in frightening people may be one reason they have not invested much in lawyers' court fees.
However, I don't share your confidence that they are 'barely legal'. If you (or I) choose to use an image that we found on the web, we risk the wrath of someone. Most things have an owner, and most of the Internet is too new for copyright to have expired. Arguing that we had 'no reason to suspect' that fees were due would not convince many judges or juries, in my view.
BTW, I am not a lawyer, etc., etc.!
Try this analogy. Suppose you found a Mercedes in the street, with the keys in the ignition. Or some scrawny kid said you could use it, do you really think you'd have a defence if the owner sued you for rental fees? Even if it was a skateboard, it was not *your* skateboard, and (broadly) finders isn't keepers in law.
I'd guess that the vast majority of webmasters have illegally used someone else's images in some way, at some time, including me. Some of them may have an ignorance defence in particular circumstances - the vast majority will have no defence at all, just the near certainty of not being caught.
|Arguing that we had 'no reason to suspect' that fees were due would not convince many judges or juries, in my view. |
I disagree and I think it would convince any UK judge. I also think that this is the very reason that they have never taken anyone to court in the UK. Many of the people affected bought their websites from third parties who supplied the images and they accepted them in good faith. There is no way a judge would award damages against them in these circumstances.
Section 97 of the UK copyright clealry covers this.
"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."
As I said earlier the law also mentions "flagrancy" and "benefit". It obviously exists to punish people who sell pirated CDs, etc. Or perhaps those who steal images and sell them on to other people but not someone who has inadvertently used a copyrighted image on a website.
Receipt of stolen property (knowing or unknowing) is also illegal in the UK, and copyright law applies similar principles.
|the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates |
The onus of proof would be on the defendant to prove that.
I also think you'd be unwise to rely on your interpretation of one clause of the act; I suspect their specialist lawyers will use a wider net.
"There is no way a judge would award damages against them in these circumstances." - without a legal opinion to back that up, it's bad advice to be giving in a public forum.
You have admitted that - ignorant or not - using copyright images is illegal, and there's no doubt about that; Once you've accepted that, it has to be unsound to assume there will be no consequences.
As it happens, I suspect it's only worth their while pursuing bigger fish, but if they did that - and won - would you dare to risk the legal fees (£20,000+) that could follow a further court case?
Obviously, the longer it goes without action, the safer you'll probably be. But just because they have not acted, does not mean they cannot - or will not. And I further suspect that making such public statements makes further action much more likely. Lawyers don't like being told they haven't a hope.
It's worth pointing out that illegal use of images is by no means confined to people buying 'ready made' websites; your suggested defence falls pretty flat for anyone who made their own.
Don't get me wrong; I think these guys are being totally unreasonable demanding silly figures for tiny gifs. But I think challenging the amount would be a reasonable way forward, while hoping to 'win' is probably wishful thinking.
I do understand protecting their investments, but not convinced that their approach is the best way to secure the most money in return..
I think if they had said you are using our images remove them or pay for them, this is the price etc ... It would be more likley to get a positive responce and generate more income and better feeling towards them in the end..
These bully-boy scare tactics only diminish their future relations with companies as their reputation is dragged in the dirt with them...
[edited by: Lobo at 12:36 am (utc) on Oct. 5, 2008]
Quadrille, I have been very close to this situation now for almost two years and while IANAL I do know what has been going on in these cases. I'll take the time to explain fully where I am coming from.
|The onus of proof would be on the defendant to prove that. |
In many cases that would not be difficult. As I already said many of the people involved can prove that they bought the images and/or websites from third parties. Getty and Corbis are totally unsympathetic in these cases, still insisting that the money must be paid.
To date they have not been prepared to back their case up in court or to actually prove that they own the image copyright. Getty have told people that they hold the copyright but that they will only prove that they do if compelled to by a court. To me that creates an impossible situation. Why this reluctance to show the proof?
|"There is no way a judge would award damages against them in these circumstances." - without a legal opinion to back that up, it's bad advice to be giving in a public forum. |
OK, I will retract.
In my opinion there is no way a judge would award damages against them in these circumstances. Having said that, some legal people are of the same opinion. One US lawyer, Oscar Michelen, has already gone on record with his feelings about Getty and Corbis. He now contributes to an online forum about this and he will even to write to them on your behalf for just $150. Clearly he is not in this to make money.
I think I am OK to post the forum link but mods please delete it if I am wrong. [extortionletterinfo.com...]
|You have admitted that - ignorant or not - using copyright images is illegal, and there's no doubt about that; Once you've accepted that, it has to be unsound to assume there will be no consequences. |
Of course I agree that it is illegal but only when the alleged offender knew "that copyright subsisted in the work to which the action relates" so my assumptions are not unsound. They are based on my personal experience and that of many others. I got a lawyer to send them a letter on my behalf, which explained my position and concluded with a statement like "We trust that this will be an end to the matter". This was one year and nine months ago and they did not respond. If they decide to take me to court now I would think that the judge would be wondering what caused the delay. Remember that these are the same people who threatened legal action if payment was not made by a specific, drop dead date.
|And I further suspect that making such public statements makes further action much more likely. Lawyers don't like being told they haven't a hope. |
Believe me, they know exactly who I am and I have been making similar public statements since this began. I have even been quoted and named in the national press about this here in the UK. If they decide to go for anyone I would suspect that I would high on their list but I am prepared to take the chance because I think that their actions are more about taking money from mostly innocent people than from protecting copyright. Many people have paid them massive sums of money without question. Can you find me one photographer who has subsequently received a payment from them as a result?
|It's worth pointing out that illegal use of images is by no means confined to people buying 'ready made' websites; your suggested defence falls pretty flat for anyone who made their own. |
No need to point that out. I would assume that our readers are savvy enough to know this already but I am not sure what you mean by my suggested defence? All I did was quote the UK law. This is the same law that the imaging companies are themselves quoting to extract money from people.
Your defence rests on the principle that you had no reason to believe that copyright subsisted, and you mention that "many of the people involved can prove that they bought the images and/or websites from third parties"?
But what about those did not buy the images and / or websites from third parties?
Do you believe that they would be able to claim, in court that "they had no reason to believe that copyright subsisted"?
I have no idea. I can tell you that I did not buy my offending image from a third party but I would still honestly claim that I had no reason to believe that I was infringing any copyright. There was no flagrancy and no benefit and certainly no justification for claiming the amount they wanted from me.
To put this in perspective, the recent much publicised J.K.Rowling copyright case was settled when the judge found in her favour and awarded her just $6K. I have heard of people receiving claims for £10K or more from Getty for the use of a couple of images which they refuse to prove they own.
I'm also UK based. If they wrote such a letter to me I would politely write back saying "terribly sorry, I've now removed the image, I didn't know it was yours and I do apologise" and ignore any further harassment.
If they did decide to go to court (for the first time sounds like) UK law is much more sensible than US law and if it was me I'd base a response on whether these people are genuinely defending copyright or whether they are in the business of extortion. I'm not a legal advisor, but reasonable is a big word in UK law.
OOp - missed the second page of this thread. BDW has it.
I've done precisely that following a strongly-worded email from Richard Carpenter's lawyers for using the logo.
They replied with a thank you very much and sorry for being so heavy, but we have to defend our property.
Not quite the same as the image hire cases, of course, in that the Carpenters never sought to hire out their logo. But I agree that if you are 'reasonable', it often makes the other party seem 'unreasonable', and that is a major issue in English civil law.