Out-law, the bulletin of IT & e-commerce solicitors Pinsent Masons LLP, reports that Getty has won a case for copyright infringement against removal company JA Coles. Coles admitted using a Getty photo 'Mother with daughter (6-8) looking at each other and smiling' on its website. Although Coles removed the image when approached for payment by Getty, they did not pay the fee. The Court ruling means they will now have to pay Getty's legal costs as well as £1,951.31 in damages.
What is significant about this case is that hundreds more may now follow. During 2005-2006 Getty (and Corbis) began invoicing alleged infringing users of their photographs for retrospective licenses. Many hundreds of UK web publishers have since received bills from Getty's UK lawyers, demanding typically £2000-£7000 within 7 days else legal action would be commenced.
So far the main consequence of the payment demands had been a furious 128 page discussion at the Federation of Small Businesses which must be the definitive case study for how little and how badly the average citizen understands copyright or the costs and consequences of publishing. Many FSB respondents feel they have done nothing wrong, that Getty is at fault for not "preventing" infringement, that their usage was minor so pursuit of payment is vindictive, that demands for payment are outrageously inflated and that Getty's methods (including Picscout tracking) amount to entrapment, harassment and extortion. Most have not paid. In some cases debt collectors have allegedly been used to pursue the "debt" - which is dubious, since no contract exists - but no court action had been forthcoming, until now. It seems likely that this was a one-off test case against JA Coles, and having been successful, Getty will now commence proceedings against other non-paying infringers who lack any substantive defence.
"I would really like to know because I mentioned all this has done is make me use my own images and has put me off using any website designer unless I supply the images myself."
Any legit designer will have a cast-iron system of provernance in place. If this is the case here you need to hand the matter over to a legitimate, credible IP specialist solicitor. But having bespoke material producer is, generaly, the best option both in terms of quality and security..
Matt Quinn,
TFGtv.com, Corporate Vision for SMALL Businesses!
Ask the designer to look at the IPTC metadata. What does it say? Who does it name as the photographer?
Once lawyers are involved, it's all poker until and unless it gets to court. At that stage Getty will have to prove they have exclusive distribution rights, else their case will collapse and they'll likely end up paying costs too.
Picscout only goes looking for images that are copies of Getty properties.
You might conclude from that that they are indeed able to prove this, and that arguing about it now will just be a waste of time and money. They don't have to prove it to you now. However you might equally take the view that they're fibbing and trying it on and it's worth calling their bluff in court.
That's a "do you feel lucky, punk?" dilemma, and why seeing a lawyer is recommended.
It's also hard to know the validity of the license your designer purchased. But just as stolen and ringed cars often have apparently legit paperwork, the buyer takes a risk unless they satisfy themselves the title is authentic. Unless the rights owner can be found and asked directly - the equivalent of asking the previous owner of a car about its history - it's hard to know. What did the metadata within the image say? If nothing, be suspicious, no sensible rights holder allows work out the door without IPTC embedded contact details. If it still contained Getty info, clearly it was suspicious. Only if it contained the details of the licensor template companymight it be regarded as kosher, and a company that painted its own metadata into stolen works would be open to criminal prosecution.
©A admin
But Getty has not provided any proof that they have exclusive rights to the image.
All I have received is a letter. The picture is on their website but it was also on another website (not template monster but very similar). Just because they are a large company I don't believe I should accept what they demand at face value.
The website designer has proof of purchase from a competitor along with T&C, Getty have offered nothing in return. If they could prove they have exclusive rights with the dates to match this then yes I would put the blame at the designer’s door but I don’t believe I should just hand over a large amount of money without any proof from Getty. How can anyone purchasing an image or template tell before purchasing it if it is stolen from another source?
I would really like to know because I mentioned all this has done is make me use my own images and has put me off using any website designer unless I supply the images myself.
Firstly, if the image is on a website promoting your business you are the one who has had the benefit . You will be the one that Getty will come after.
The whole TemplateMonster issue is fraught with difficulties. TemplateMonster did not have permission from Getty to use Getty images. TM settled a legal case in Florida for $20 million. Part of the deal was that Getty would not pursue anyone who gets new documentation from TM saying that you bought legally from TM.
BUT! It now transpires that there was more than one source of TM templates. The other sources were selling both the templates and images stolen from TM. Although some of these sources seemed as if they were in Florida they were actually in Russia. It is very unlikely Getty will recognise as genuine receipts issued from other sources. One estimate is that 2/3rds of the templates sold are counterfeit.
Your solution is tell your web designer you hold him responsible. It is up to him to sort out any problems.
In the circumstances you describe, and provided there is supporting documentation, it seems Getty is mistaken. But because of the risk of court proceedings being initiated by Getty and the potentially huge costs involved, I strongly suggest you get a specialist IP solicitor involved ASAP. It shouldn't cost much at all for someone to review the paper trail, give advice and authoritatively clarify the matter to Getty's lawyers.
Do not go to a High St 'GP' lawyer whose expertise is conveyancing, wills and accident claims, most are not that sharp when faced with the complexity of copyright. Either ask the Law Society for details of IP specialists, or perhaps use one of the IP lawyers listed in our legal links. We don't endorse them or receive commission, they just happen to be known to us as specialists. I hope this helps.
©A admin
As someone who has received a letter from Getty I am not looking to get into an argument however I would like to know in my case what I could have done differently.
I will openly admit that I know nothing about website design. I hired a website designer to design me a basic webpage so I could have an online presence. I provided the written content and the pictures were sourced by the website designer.
The website is owned by the website designer. The IP address is not registered to me or my company in any way it is registered to the website designer. I cannot make any changes to the website. All changes are made by the website designer.
The picture that Getty are claiming was "stolen" was purchased by the website designer (who has a receipt of purchase) many years ago as part of a template package from another organisation. Up until a few days ago they were still selling the template.
The website designer has only used the template on my website since he purchased it. He has not used it on any other sites.
On the T&C's they say he can use the templates to design and sell professional websites.
Getty has not provided any evidence that they have sole exclusivity to sell the image.
I have explained the situation to Getty however they ignore the evidence I provide.
Am I expected to accept Getty word that the image was stolen when the designer has proof that he purchased the image via another organisation with T&C's etc?
Personally I don’t believe all cases are the same. If someone has “found” the image from Google etc then in my option learn from your mistake pay up and move on. If someone has hired a professional website designer to do a job personally I feel it is the website designer who should be facing the accusations from Getty not the “end user”. If again then someone has hired a designer who purchased the image in good faith via a template website for example template monster this should be taken into consideration.
I would honestly like to know in this situation what I could have done differently to prevent such a thing happening again. I think that in the future I will either use my own images or contact a photographer direct.
Thanks
More Myths and Fairy Tales?
[QUOTE]Exactly, this never actually reached a courtroom so it doesn't settle any of the arguments, unfortunately. As a small business which is being stung by Getty I'd really like to know what would happen in court.
The myth that this 'never reached a courtroom' or rather the significance of it being settled outside the courtoom needs to be dispelled. A court order was issued. Whether that happened in the courtroom or in the judges caravan at Saltcoats is of no consequence so long as the place where it was written up was deemed a proper one...
Contrary to the fairy stories you'll hear elsewhere no 'judgement' or 'precedent' needed to be set here... And nothing was necessary other than the judge to order Coles to cough up...
Coles folded because they had no legitimate defence. Could they have insisted on going through the motions of a trial? Probably..Maybeee... It would have lasted five minutes royally hacked everyone off and probably resulted in their final bill being amplified by a factor of five!" In truth, I'd offer the opinion that it was foolhardy inthe extreme of Coles to let things get as far as they did...
[QUOTE]At one point last year we had more work than we could cope with, so we used a freelancer to produce a handful of sites. On one of these sites, one small photo out of many turned out to have been taken from Getty by the freelancer, and we missed it.
And this freelancer was left to their own devices? Begs the question why you didn't hire someone with the same robust IP management policies as you apparently have yourself. What about the project file? Why no paperwork? Where's your audit trail?
[QUOTE]The amounts they claim are outrageous frankly and are a lot of money for a small business to find.
No, not at all. I can think of one site where the 'rack rate' for otherwise unpublished images is £35,000...
[QUOTE]If flagrancy and/or benefit have to be proven, I think we would have a case with either.
They don't! This is a myth. And the 'line of reason' you're quoting comes from a familiar source. One that has been UTTERLY discredited.. We already have comment on the S97 defence here and weight is lent to it by Scott Gair who is someone that really is qualified to comment
Matt Quinn,
TFGtv.com, Corporate Vision for SMALL Businesses!
Dear Joe Public
Your freelancer stole an image. You admit that. What Getty choose to charge is their business. The fact you chose to charge only £540 has nothing to do with it. I sell licences to my images and do not find £1215 outrageous.
Benefit is easy to prove if the image was used to enhance a business site. Why use the image at all if it does not enhance the page?
Getty are a massive worldwide business. These demands are a very minor part of their activities.
Image theft is a serious problem. If people don't pay for images there will soon be no images to steal.
I suggest you read
http://www.picscout.com/news-and-events/saa-trial-reveals-high-rate-of-c...
and
http://www.stockartistsalliance.org/Infringements-picscout-study
Exactly, this never actually reached a courtroom so it doesn't settle any of the arguments, unfortunately. As a small business which is being stung by Getty I'd really like to know what would happen in court.
Feel free to ignore the rest of this as irrelevant, just thought I'd add our Getty sob-story here.
We have spent a few thousand pounds over the last few years on images at the Getty-run istockphoto.com site (as well as on fotolia) for websites we produce - which demonstrates that our policy is to keep our sites legal and pay whatever is due. At one point last year we had more work than we could cope with, so we used a freelancer to produce a handful of sites. On one of these sites, one small photo out of many turned out to have been taken from Getty by the freelancer, and we missed it.
We now have a demand for £1215, for our use of this image on a site which we were paid a grand total of £540 for designing and hosting. The amounts they claim are outrageous frankly and are a lot of money for a small business to find.
If flagrancy and/or benefit have to be proven, I think we would have a case with either.
Are these demands becoming Getty's main source of income? If so, what's to stop them claiming 10x or 100x the amounts they are claiming now?
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