Getty Images / Pinsent Masons - Copyright Claim

[bdw]

The point has been made that ignorance is no defense which is right, however Im 95% sure that the copyright violation is committed by the creator of the works - the person who designed your website, regardless of weather they are still trading or not.

The website owner is solely responsible for the website content. He or she would have to take a separate action against the designer if the designer had infringed anyone's content.

Remove the image, reply to their letter explaining the circumstances and see how you get on.

This case has been going on for years and this has been done many, many times in the past. The imaging companies ignore it and persist with their demands in all cases that I am aware of.

 

[OldWelshGuy]

As mentioned above, the Intellectual property laws are not as black and white as some feel.

YES the designer is the one responsible
YES the designer is the one who should ultimately pay for the damage he has caused (or his professional indemnity insurance etc)

The problem is (as pointed out by BDW) The site owner is the one who is breaching IP rights, and as such is the one the IP rights holder (or representative) will need to chase after. Certainly the Site owner can haul the designer into court co-named on the suit, but that might not help as there are 2 different cases here.

Honestly, as BDW says, some of us have been around this for a long time, and I don't think there is a single sane person who has been involved, that does not recognise that the rights of the IP holder have been breached, that could never be disputed, because their itmes are being used without their permission.

What HAS been disputed is a raft of other points, such as due process, tactics, costings, PROOF of ownership etc.

 

[The Resolver]

Re: the exchanges a few pages back between OWG and VeryMark on court jurisdiction and procedure, the announcement two week's ago by Ken Clarke that the Jackson Review on Costs recommendations are being accepted in full means that IP claims less than £5,000 (which covers most Getty claims) will be heard at small claims track level with no cost liablity for the defendants.

This is hugely important for a number of reasons:-

1. Getty will know that the legal cost they will incur (whichin many cases will be greater than the amount sought) if they sue will not be recoverable hence there will be a greater need to resolve without litigation (whilst retaining the right to sue the worst infringers to send out a message) .

2. Clarke also announced that the small claims track limit will increase anyway to £15,000 so even more Getty claims will be sct'd.

3. Clarke also announced that they are introducing compulsory mediation for sct cases.

For those who are convinced that Getty is all threat and no action, whilst the irrecoverability of costs may deter issuing, the compulsory mediation will be a counter-balancing factor, since issuing will no longer mean having to face any legal challenges in court. SC mediation - which is free- has been highly successful, although they will need training in IP or maybe a specialist mediation panel will be used. I suspect the outcome will be Getty issuing without representation in simple cases.

 

[OldWelshGuy]

Thanks Graham, this is what I was getting at, it is good news all round really as it means the people benefiting will be those meant to benefit, and not lawyers.

 

[globalee]

Re: the exchanges a few pages back between OWG and VeryMark on court jurisdiction and procedure, the announcement two week's ago by Ken Clarke that the Jackson Review on Costs recommendations are being accepted in full means that IP claims less than £5,000 (which covers most Getty claims) will be heard at small claims track level with no cost liablity for the defendants.

This is hugely important for a number of reasons:-

1. Getty will know that the legal cost they will incur (whichin many cases will be greater than the amount sought) if they sue will not be recoverable hence there will be a greater need to resolve without litigation (whilst retaining the right to sue the worst infringers to send out a message) .

2. Clarke also announced that the small claims track limit will increase anyway to £15,000 so even more Getty claims will be sct'd.

3. Clarke also announced that they are introducing compulsory mediation for sct cases.

For those who are convinced that Getty is all threat and no action, whilst the irrecoverability of costs may deter issuing, the compulsory mediation will be a counter-balancing factor, since issuing will no longer mean having to face any legal challenges in court. SC mediation - which is free- has been highly successful, although they will need training in IP or maybe a specialist mediation panel will be used. I suspect the outcome will be Getty issuing without representation in simple cases.

has this been passed as Uk Law??

 

[The Resolver]

has this been passed as Uk Law??

Not yet. The Government only announced two weeks ago that it was going to swallow Jackson whole. Lawyer groups are threatening a bit of a protest but somehow I do not see marches/riots/solicitor invasion of Hammicks legal booksllers or kettling of barristers in Lincolns Inn Fields. Then again the complaints are not focused at those items I have highlighted.

 

[globalee]

thanks for getting back to me so quickly, they are really stressing me out with all their (i)-legal posturing and harassment. I can really understand how people snap in such circumstances.

 

[OldWelshGuy]

how are they harassing you? are they telephoning you?
You have the right in law to tell people how and when they are allowed to speak to you. You have the right to demand written format only. if they break the rules, you can bring the law crashing down on them.

 

[lovewow]

Therefore it would appear that although I do not think at can be disputed that in these unfortunate situations, damages are claimable by Getty, 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.

 

[JimMc]

How is Jackson going to effect Scotland

 

[Jonathanus]

I am not sure of their entity as they were not uk based.

 

[VeryMark]

The effect of the Jackson Review in Scotland is an interesting question I think.

Primary legislation concerning copyright and other intellectual property rights applies to the whole of the UK but Scotland has its own practice and procedures as to the conduct of legal proceedings.

 

[bdw]

The effect of the Jackson Review in Scotland is an interesting question I think.

:| I'll bet it is. Can someone let us in on the secret? :|

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[Beardeye11]

I also received letters (and a phone call) from Getty's "Copyright Manager" a couple of years ago. They were duly ignored and the issue seemed to have passed, but I have now received a letter stating that the issue is being passed to their solicitors- Simons Muirhead and Burton. They are claiming something like 13k.

The background is that an independent website designer, who has since moved abroad, uploaded the images to the site. When the first Getty letter was received the images were immediately removed. As with many others I was totally unaware that Getty's copyright was infringed, but i have no recourse with the web designer now.

I would be grateful for advice that anyone can pass my way. I did speak to IP solicitors originally but do not want to pay their fees for fighting this, so would prefer to do so alone, if possible.

I have read the whole thread and see that there are differing views as to whether "ignore" or "respond". As the matter has now been sent to solicitors i am inclined to negotiate and finalise the issue, as the amount claimed is pretty distressing.

I am also happy to share information/chat with others in a similar situation.

 

[bdw]

Yes, it can be very distressing, especially when you are not really guilty of any offence other than trusting the designer to do things properly.

Firstly I have to say that it has to be your decision whether or not to pay up. All we can say is that there is NO evidence to suggest that Getty or their agents are going to carry out their threats. In actual fact there is more recent evidence to suggest that the courts are taking a dim view of company's using these tactics. This case is in the USA but there is nothing to suggest that they would be treated any more sympathetically here in the UK. Here's a similar decision from a UK court.

Unless you have done something blatant and outrageous with regard to copyright infringement then it would seem that you have no more chance of being taken to court than the many thousands of others who have refused to pay. From what you have told us your case does not seem blatant.

I am not a lawyer (and the following has been said many times before) but the smart money is on Getty's agents being unwilling to test this in court. If they do there is every chance that the judge will treat it the same as that in the links above and the gravy train will be derailed forever. Meanwhile they are happy to pick the tidy sums that they are getting from those who have been frightened into paying. So basically it is your call.

No doubt a few members of the photographic community will be along here soon to add to the scaremongering. If they do come along ask them to disprove anything that has been said above.

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[OldWelshGuy]

No doubt a few members of the photographic community will be along here soon to add to the scaremongering. If they do come along ask them to disprove anything that has been said above.

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YOU CAN BET ON THE ABOVE if form is anything to go by

Tis a mess, and of course with ACS law going bankrupt as a result of their 'speculative invoicing' practices and mishandling of the situation, it is safe to say that there will be no 'speculative court cases' from getty etc.

My guess is that they will, every now and again, take to court someone who the KNOW will settle, so they can get a rubber stamp (as per JA Cole) but i don't think we will now see wholesale litigation, in fact i think the opposite might well be true, with a class action for harrassment being taken out.

 

[Beardeye11]

Thanks for the replies guys. The ACS case is interesting and should increase bargaining power if we do respond.

 

[MASSEY]

If you respond you are probably going to just get spammed even more by them asking you for money.

 

[The Resolver]

As the matter has now been sent to solicitors i am inclined to negotiate and finalise the issue, as the amount claimed is pretty distressing.

I am currently putting together a system for mediating in these disputes and am in discussion with Getty's lawyers. PM me if you want to add your case.

 

[bdw]

I am currently putting together a system for mediating in these disputes and am in discussion with Getty's lawyers.

Interesting. Perhaps you could ask them why they are harassing people by issuing threats they have no intention of carrying out?

.

 

[UKSBD]

Interesting. Perhaps you could ask them why they are harassing people by issuing threats they have no intention of carrying out?

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Jobs for the boys?
http://www.lawgazette.co.uk/news/unemployment-rate-among-solicitors-climbs-400

 

[OldWelshGuy]

I am currently putting together a system for mediating in these disputes and am in discussion with Getty's lawyers. PM me if you want to add your case.

When you say 'Getty's lawyers' are you referring to multiple companies or one of their lawyers, as it appears getty have moved away from Pincent Mason to a new bunch (according to the post above).

BDW makes a point above, and it is something that i have also stated many times. They are issuing threats, and by law they are not allowed to issue a threat of action, then not take that action, but take another action.

I think that what people should now start doing is STOP talking to them, and START complaining to the law society with regard harrassment. After all making a threat of action, and not following it up but taking DIFFERENT action IS harrassment and not allowed

 

[The Resolver]

Yes, OWG, I meant PM - don't know they have withdrawn from them.

What would be unlawful is repeatedly threatening to issue proceedings that have absolutely no basis in law in order to support a demand. It cannot be unlawful to not issue proceedings that have some basis of argument in their favour.

Don't forget those who settle will not be visiting UKBF so we may see a somewhat skewed perspective here. I have previously mentioned here that any first instance proceedings will not be published. So absence of evidence (of proceedings or settlements) is not evidence of absence.

 

[bdw]

I have previously mentioned here that any first instance proceedings will not be published. So absence of evidence (of proceedings or settlements) is not evidence of absence.

Yes Graham and I have previously mentioned that in the age of the Internet and with the high profile that this case has, there is no way (IMO) that this would or could be kept hidden. I would also think that it would be in the imaging companies best interests to publicise these events to frighten more people into paying.

There are also other photographic forums on the Internet that would love to be able to cite cases like this.

 

[bdw]

It cannot be unlawful to not issue proceedings that have some basis of argument in their favour.

I am not so sure because the UK Harassment Act clearly states ...

(1) Any person who sends to another person
(a) a letter, electronic communication or article of any description which conveys
(i) a message which is indecent or grossly offensive
(ii) a threat or
(iii) information which is false and known or believed to be false by the sender or
(b) any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

In the vast majority of cases they are not issuing proceedings. They are issuing threats and if it can be proven that they have no intention of carrying out these threats (plenty of evidence of this) then would this not be harassment as defined above?

.

 

[OldWelshGuy]

Graham the problem here is that getty have passed these cases to debt collectors, they have then passed them to solicitors who are acting as debt collectors.

We have here a crossover of multiple pieces of legislation, and added to this we have the spirit of legislation. What they are absolutely not allowed to do is behave in the way they are currently behaving.

The Administration of Justice Act 1970 S.40 makes it a Criminal Offence for a creditor or a creditor's agent (often a debt collection agency) to make demands (for money), which are aimed at causing 'alarm, distress or humiliation, because of their frequency or publicity or manner'.

Some important words bolded. ALARM, DISTRESS, FREQUENCY. interestingly frequency is used, and my understanding is that this can be taken to mean poor regularity. e.g. they send a letter that threatens court action in 7 days. then in 7 days nothing happens. Keep in mind here that by NOT replying it should be assumed that the accused has opted for court actiuon to proceed as per the contract offered within the letter. NOTHING HAPPENS. 12 months later another letter bolt from the blue, telling them that another £300 in costs has been added and that court action will be taken within 7 days. the guy WANTS to go to court he has TOLD THEM to take him to court or go away!

The above scenario has been repeated hundreds (and i mean that literally) of times.

SO. safe to say that they are breaking the above act, the only question is whether or not the act applies as no credit exists (or does it?) if getty are attempting to put in place a unilateral contract, then that would possibly be deemed as a debt. SURELY it isn't legal to harrass someone to send you money you do not owe?

Getty & PM can't have it all ways. PM (and all solicitors) MUSt adhere to the solicitors code of conduct 2007, and it is clear here that they are not, after all they have clearly in black and white stated a course of action that they will take, but then failed to take.

It isn't and hunky dory as many would have you believe, I get emails asking about this constantly (as does BDW) dfue to both our long standing involvement in the situation via forums.

I like many want to see someone grasp this nettle and deal with it. I have no part in this as i have not received a letter, and ironically enough buy my images from istock, so if I did get a letter it would be dealt with instantly.

many others want an end to it, they want it dealt with, but getty etc refuse to bring matters to a head. and I am certain that in all the cases I have liaised with, the ONLY cases closed are where they have settled. which to me indicates that it is about frightening people into settlement rather than following the law.

The above statements and citations point out where getty and its representatives are flouting the laws.

 

[OldWelshGuy]

corss posted with BDW above!

 

[davek17]

Hi there

I used to run a sports statistics website and we bought news/images through a well known sports news provider. As part of this we got images that were often from Getty's, they watermarked them digitially was what I was told which is why they can find them electronically.

We were totally legitimately paying for these images but we had an email every other month demanding payment for the use of them the whole time we used them, despite us having actually paid for them. When we emailed them, they never knew what we were on about, we were told to just take the image off the site and nothing would happen.

We then went through the same thing 2 months later and so on. So what we ended up doing was ignoring the emails and nothing ever happened in a 3 year period. We were a charity, heavily involved in funding sports charities and as such we felt we would always have had the backing of the very people in the photographs if all else failed so we thought this was OK.

I strongly believe they are using a sledgehammer to break a small nut here so I think ignoring them is fine. An email is not a g'tee anyway they have to send something to your address in hard copy before they can take it anywhere.

2 points to think about:

1. You can buy Getty images from everywhere, tonnes of people license them and resell them and tonnes of places you go to have unlimited use licenses and Getty have no idea who you might have bought or copied them from so take the image off the site and I am sure it will lie there.

2. I thought you got some grace if you unknowingly used an image. We use images all the time for our blog and 99% of the time (if the owners ever find out) they are more impressed with how we changed or edited it or actually thank us for the free advert!, the other 1% ask us to kindly remove the image within 14 days, which we of course always do.

We never knowingly use images that we feel are probably copyrighted.

3. We have no idea if an image taken from the Internet is copyrighted or not so I think there is a good argument to say this. Can you not use an image from the BBC? I am sure if our TV licenses pay for the website then we have a right to use them for non-proofit related uses?

Hope this helps in some way.

DaveK

 

[Deleted member 59730]

We never knowingly use images that we feel are probably copyrighted.
DaveK

In that case you only ever use images when you know the photographer has been dead over 70 years. Everything else is in copyright and protected automatically by law.

 

[OldWelshGuy]

In that case you only ever use images when you know the photographer has been dead over 70 years. Everything else is in copyright and protected automatically by law.

Did you miss the bit where he said he was buying a legitimate licence to use the images?

 

[Esk247]

Did you miss the bit where he said he was buying a legitimate licence to use the images?

that's the bit that worries me...how much evidence do you need for each photo you've ever downloaded? a receipt? what..for all 1500 images that you may use as a web designer or graphic designer in a single year? 1500 printed receipts? 1500 records of downloading this information after paying for it?

 

[OldWelshGuy]

that's the bit that worries me...how much evidence do you need for each photo you've ever downloaded? a receipt? what..for all 1500 images that you may use as a web designer or graphic designer in a single year? 1500 printed receipts? 1500 records of downloading this information after paying for it?

ABSOLUTELY !

and not just for images, you should have a provenance document for each job that covers not only images, but coding, text content and anything else that comes from a third party.

Keeping a record of provenance is mission critical these days, otherwise it is needle in a hastack time should someone come calling.

 

[bdw]

We have no idea if an image taken from the Internet is copyrighted or not so I think there is a good argument to say this. Can you not use an image from the BBC? I am sure if our TV licenses pay for the website then we have a right to use them for non-proofit related uses?

Sorry, this is definitely not good advice. What you are doing is telling people to disregard the laws of copyright.

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[Deleted member 59730]

that's the bit that worries me...how much evidence do you need for each photo you've ever downloaded? a receipt? what..for all 1500 images that you may use as a web designer or graphic designer in a single year? 1500 printed receipts? 1500 records of downloading this information after paying for it?

My business generates much more than 1500 receipts for parking in a year. Lets say an average of £3 each. That is £4500 I couldn't claim against tax if I didn't have the little bits of paper. Paperwork is all part of the job.

 

[The Resolver]

They are issuing threats and if it can be proven that they have no intention of carrying out these threats (plenty of evidence of this) then would this not be harassment as defined above?

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No it would not. No court is going to believe that Getty Images would never, in any circumstance, issue proceedings.

Besides, bluffing is a long established practice in the legal profession. It has a perfectly acceptable role within a justice society.

 

[The Resolver]

there is no way (IMO) that this would or could be kept hidden. I would also think that it would be in the imaging companies best interests to publicise these events to frighten more people into paying.

There are also other photographic forums on the Internet that would love to be able to cite cases like this.

What if settlements have been subject to non-disclosure clauses to protect Getty against reduced settlements being taken to reflect true vvalue and inhibit future offers?

 

[Deleted member 59730]

No it would not. No court is going to believe that Getty Images would never, in any circumstance, issue proceedings.

Besides, bluffing is a long established practice in the legal profession. It has a perfectly acceptable role within a justice society.

I think that BDW and OWG have never used the small claims court to chase money. Before you do it is a requirement to issue a 'Letter before Action'. The letter is a threat that if the person does not pay up you will go to court. You then have a choice whether to proceed or not. I still haven't seen any direct evidence that Getty have done more than this.

If you really want to know what harassment is like try not having a TV.

 

[OldWelshGuy]

I think that BDW and OWG have never used the small claims court to chase money. Before you do it is a requirement to issue a 'Letter before Action'. The letter is a threat that if the person does not pay up you will go to court. You then have a choice whether to proceed or not. I still haven't seen any direct evidence that Getty have done more than this.

If you really want to know what harassment is like try not having a TV.

Only problem here is that this doesn't go through the small claims court does it, it goes through the high court.

best not to get into the 'are they acting within the letter and the spirit of the law', as we have done this many times previously, however, a court is likely to decide that sometime soon.

I have cited the various acts of parliment and legal guidelines etc, it is up to people affected to persue them under those laws.

 

[bdw]

No it would not. No court is going to believe that Getty Images would never, in any circumstance, issue proceedings.

It would be extremely easy to present evidence that their speculative invoicing process followed by several threats has been used many thousands of times without any further action. I believe that any reasonable court would see this as strikingly clear evidence that they have no real intention of taking anyone to court.

This is also conclusive proof of "a threat or information which is false and known or believed to be false by the sender".

 

[bdw]

What if settlements have been subject to non-disclosure clauses to protect Getty against reduced settlements being taken to reflect true vvalue and inhibit future offers?

You mean like the JC Coles case that everyone involved in this now knows about?

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