- Original Poster
- #1
I am currently in the throws of a Getty Image infringement of copyright claim for the use of an unlicenced image on a website and am being pounded by their UK lawyers, Pinsent Masons, as I know many other people are also. I am being threatened with court action unless I pay almost £3,000 including their £600 of additional costs for the use of a single image. I have consulted a specialist law firm who have quoted a minimum of £2,000 to defend the claim and have pretty much said that they would advise me to pay in full anyway. I have scoured and read many articles and bulletin boards that cover this subject of what was unknown copyright infringement because a third party web company developed the site and used the image and they all seem to say the same thing, pay up. It is scandalous even extortion but it is legal and there is nothing you can do. One thing I do know is that Getty in the UK have NEVER won a case in court. They have won damages against AJ Coles that was settled out of court.
Now in my case, having researched, it is my understanding that although I am an innocent party in this and I was not aware of the copyright infringement, innocence in the eyes of the law is not a defence.
Therefore let's say I admit to damages as I was the owner of the website and therefore I did have the benefit of the image. The question is then not if I am liable for damages, but how much. Getty Images admit that they do not know how long the image was used for or the scope of the image. Therefore they estimate (in other words guess) what the damage should be.
I am not by any means a legal expert but here is some case law:-
In Stovin-Bradford v Volpoint Ltd [1971] Ch 1007 it was stated at 1016 "The defendants took the plaintiffs plan and took it as if they had a licence to use it as they pleased - to take so much of it as suited them and leave out what they did not want. They ought to pay as damages an amount equivalent to the fee which they would have had to pay for a licence".
Copinger at 22-163 states in cases where the right to exploit the Image is by way of licences for royalty payments, "If the infringer uses the right without a licence, the measure of damages is the amount he would have had to pay by way of royalty instead of acting illegally".
And finally,
In General Tire and Rubber Co v Firestone Tyre and Rubber Co [1975] FSR 273 it was said that at 274 "damages should be assessed so as to put the injured party in the position he would have been in if he had not sustained the wrong, and thus the appropriate measure of damages where a patentee exploited a patent by granting licences was the "going rate" for such a licence at the time that infringement commenced" and that this "requires the judge assessing damages to take into account any licences actually granted and the rates of royalty fixed by them, to estimate their relevance and comparability, to apply them so far as he can to the bargain hypothetically to be made between the patentee and the infringer, and to the extent to which they do not provide a figure on which the damage can be measured, to consider any other evidence, according to its relevance and weight, upon which he can fix a rate of royalty which would have been agreed".
Furthermore, Pinsent Masons I believe are the firm behind the website out-law dot com (I cannot post the url as I have not made 15 posts)_
It is on this website that they state they won damages of £2,000 against AJ Coles which I understand was settled out of court. However they also state the following on exactly the same page.
"Courts will usually award as damages the normal commercial fee that would have been paid by a company to license the image in the first place in such cases and award additional damages only where a company can show that the breach of copyright was flagrant."
Pinsent Masons, the law firm behind OUT-LAW.COM, acted for Getty Images in the case.
Here is a definition of flagrant:-
Therefore it would appear that although I do not think at can be disputed that in these unfortunate situations, damages are claimable by Getty Images, it is my non-legally trained opinion that the damages are limited to what it would have cost to purchase the licence in the first place and not the extortionate amount that Getty Images and Pinsent Masons try to scare and bully people into paying.
I am convinced they are playing a numbers game that will scare enough people into simply paying what they ask for through fear, and make the whole process worthwhile for them.
I would welcome thoughts on this.
Now in my case, having researched, it is my understanding that although I am an innocent party in this and I was not aware of the copyright infringement, innocence in the eyes of the law is not a defence.
Therefore let's say I admit to damages as I was the owner of the website and therefore I did have the benefit of the image. The question is then not if I am liable for damages, but how much. Getty Images admit that they do not know how long the image was used for or the scope of the image. Therefore they estimate (in other words guess) what the damage should be.
I am not by any means a legal expert but here is some case law:-
In Stovin-Bradford v Volpoint Ltd [1971] Ch 1007 it was stated at 1016 "The defendants took the plaintiffs plan and took it as if they had a licence to use it as they pleased - to take so much of it as suited them and leave out what they did not want. They ought to pay as damages an amount equivalent to the fee which they would have had to pay for a licence".
Copinger at 22-163 states in cases where the right to exploit the Image is by way of licences for royalty payments, "If the infringer uses the right without a licence, the measure of damages is the amount he would have had to pay by way of royalty instead of acting illegally".
And finally,
In General Tire and Rubber Co v Firestone Tyre and Rubber Co [1975] FSR 273 it was said that at 274 "damages should be assessed so as to put the injured party in the position he would have been in if he had not sustained the wrong, and thus the appropriate measure of damages where a patentee exploited a patent by granting licences was the "going rate" for such a licence at the time that infringement commenced" and that this "requires the judge assessing damages to take into account any licences actually granted and the rates of royalty fixed by them, to estimate their relevance and comparability, to apply them so far as he can to the bargain hypothetically to be made between the patentee and the infringer, and to the extent to which they do not provide a figure on which the damage can be measured, to consider any other evidence, according to its relevance and weight, upon which he can fix a rate of royalty which would have been agreed".
Furthermore, Pinsent Masons I believe are the firm behind the website out-law dot com (I cannot post the url as I have not made 15 posts)_
It is on this website that they state they won damages of £2,000 against AJ Coles which I understand was settled out of court. However they also state the following on exactly the same page.
"Courts will usually award as damages the normal commercial fee that would have been paid by a company to license the image in the first place in such cases and award additional damages only where a company can show that the breach of copyright was flagrant."
Pinsent Masons, the law firm behind OUT-LAW.COM, acted for Getty Images in the case.
Here is a definition of flagrant:-
- flagrant (conspicuously and outrageously bad or reprehensible) "a crying shame"; "an egregious lie"; "flagrant violation of human rights"; "a glaring error"; "gross ineptitude"; "gross injustice"; "rank treachery"
Therefore it would appear that although I do not think at can be disputed that in these unfortunate situations, damages are claimable by Getty Images, it is my non-legally trained opinion that the damages are limited to what it would have cost to purchase the licence in the first place and not the extortionate amount that Getty Images and Pinsent Masons try to scare and bully people into paying.
I am convinced they are playing a numbers game that will scare enough people into simply paying what they ask for through fear, and make the whole process worthwhile for them.
I would welcome thoughts on this.
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