Getty images unauthorised use letter
- Thread starter Emma Beck
- Start date
hmm not read about this before. Checking the Getty site there are SO MANY images...it is almost entrapment...
business idea....open a site with images of absolutely anything and some, quote quite pricey licences that peope would baulk at. Do not disable right click copy. Go for the kill if anyone happens by and copies a pic or if someone copies a pic off someone else that copied that pic...
I have even recognised an imaged used by a supplier we could so easily use to promo that product...how scary is that?
business idea....open a site with images of absolutely anything and some, quote quite pricey licences that peope would baulk at. Do not disable right click copy. Go for the kill if anyone happens by and copies a pic or if someone copies a pic off someone else that copied that pic...
I have even recognised an imaged used by a supplier we could so easily use to promo that product...how scary is that?
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Hi,
I know other people have posted in this forum about the getty image demand letters but I haven't been able to find the correct info for my situation.
I'm a web designer and designed a small website about 3 years ago for a local client. He told me he would take some relevant pics for his website and would forward them to me very soon. In the meantime I used an image from google images as a placeholder (I was just starting up and had never/have never needed to source images since as clients have always provided them. I had no idea the image was from getty).
The client above however never got in touch with me again (for about 2 years) and I also forgot about it. The image on his site was about the size of a postage stamp. Now a few months ago he got a letter from getty images re. copyright infringement - same standard letter demanding over £1000 for the image. He contacted me and finally provided me with his own images, which i placed on his site and removed the one in question. He further decided to ignore the letter they had sent and also the second letter they sent him about a month later. I never gave him any advice on it, I just took down the image and replaced it with his own, as he requested.
Now he got a letter from a uk based solicitor about it, basically saying that he should pay up or go to court (the amount has been increased by £400 + VAT, presumably for the cost of the solicitors).
He now (not before) says he wants me to look into this and he will seek recovery from me.
My questions are: am I responsible for this or is he?
If I am responsible, surely the £400 + VAT are due to his error in not dealing with it. The letter was after all addressed to him..
What is the best way for me to deal with this? He mentions something along the lines of perhaps making 'a without prejudice offer' - what is this?
How does getty calculate the cost? The demand letter offers no explanation.
And any other relevant advice, I'd be very grateful!
Thank you!
I know other people have posted in this forum about the getty image demand letters but I haven't been able to find the correct info for my situation.
I'm a web designer and designed a small website about 3 years ago for a local client. He told me he would take some relevant pics for his website and would forward them to me very soon. In the meantime I used an image from google images as a placeholder (I was just starting up and had never/have never needed to source images since as clients have always provided them. I had no idea the image was from getty).
The client above however never got in touch with me again (for about 2 years) and I also forgot about it. The image on his site was about the size of a postage stamp. Now a few months ago he got a letter from getty images re. copyright infringement - same standard letter demanding over £1000 for the image. He contacted me and finally provided me with his own images, which i placed on his site and removed the one in question. He further decided to ignore the letter they had sent and also the second letter they sent him about a month later. I never gave him any advice on it, I just took down the image and replaced it with his own, as he requested.
Now he got a letter from a uk based solicitor about it, basically saying that he should pay up or go to court (the amount has been increased by £400 + VAT, presumably for the cost of the solicitors).
He now (not before) says he wants me to look into this and he will seek recovery from me.
My questions are: am I responsible for this or is he?
If I am responsible, surely the £400 + VAT are due to his error in not dealing with it. The letter was after all addressed to him..
What is the best way for me to deal with this? He mentions something along the lines of perhaps making 'a without prejudice offer' - what is this?
How does getty calculate the cost? The demand letter offers no explanation.
And any other relevant advice, I'd be very grateful!
Thank you!
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bdw
Bottom line reply is that he is responsible. It's his website.
Logical reply is that you should not have used an image that did not belong to you, postage stamp or poster size.
In the real world you or he are highly unlikely, in fact it's almost a certainty that you or he will be taken to court. This is based on current knowledge. How you deal with him is up to you but these are the facts as we know them.
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Thanks bdw. I'm not sure what you mean, it's unlikely or almost a certainty that me or him will be taken to court?
Where would I get legal advice on what to do about this? I obviously don't want to spend the same amount on legal advice but do think it's best to find out where I stand before I reply to him. I want to be reasonable about it of course and I know now I should never have used the image, I was just completely new to the whole thing then and totally unaware...
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I'm afraid this is incorrect. webdesign33 committed the infringement by copying it and using it, and is therefore liable. The website owner is also liable but would probably be able to pass on his losses by suing the designer.
Google is a search engine - it searches websites. Anything it displays must be on a website - where exactly did you think the image came from?
You both are - see my response above.
I don't know the legal answer to that but I suspect you might be correct. However, if you get into a legal argument with your client he may end up paying their legal costs but you end up paying his.
If you say or offer something "without prejudice" it means the other party can't use that information against you in court. They can't say to the judge "they admitted it was worth $800" - It allows you to negotiate without those words later being used against you.
The best thing to do would be to come to an agreement with your client to share the cost.
Go to their site and select a similar image for 2 years commercial use on the web and see what cost it spits out.
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bdw
Sorry, I meant that it is almost certain that you will not be taken to court. My bad English!
This is based on the fact that only one case from many thousands has made it to court in the UK and there were other reasons for this. If you choose to ignore it the overwhelming odds are that you will hear no more about it but it has to be your decision.
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The copyright infringement yes, but the professional negligence is with the designer.
If the website owner gets stung for £1500 what's to stop him then suing the designer for a lot more. (the cost to him, cost to reputation, his costs etc.)
Bedroom web designers beware, I'm amazed that a lot more people who get the getty images letters don't just go straight after the designers.
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I am certainly not trying to be rude here but unfortunately what you "know" is incorrect. The person who commits the offence is liable. The website owner is also liable (which is actually a little unfair in cases where their web designer lied about the origins of the image) but the person committing the original offence is definitely liable.
The designer/OP copied the image without consent of the copyright holder (which is clear infringement of copyright) and used it to make the web site. He was almost certainly guilty of distributing a copyright work (another infringement) when he sent the proof site layout (or a link to a test site) to his client. There may well be a separate offence due to the we site owner launching the site (thus distributing the image to a load more people) but that doesn't alter the fact that the designer did infringe the copyright holders rights and is liable.
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As stated by UKBSD, there are two issues of liability.
1. who is liable for the IP use without licence.
2. who ultimately is responsible for that cost.
1. Sadly it is the site owner who is responsible for dealing with the IP breach under UK law. HOWEVER...
2. It is the DESIGNER who is ultimately liable for the loss, and it is HE/SHE who will have to indemnify their client.
Sorry to say but the designer was negligent, he took an image and placed it on a client site, and then published it to the internet. He breached his duty of care, and as a result has caused his client to incurr costs.
I assume you have professional indemnity insurance, just pass the case to them, as that is exactly what you are paying it for.
This is 100% identical to the JA Coles case, where the designer was co-named in the case and it was the designer who settled (or his PI insurer did).
If you don't have PI insurance then you are left holding the baby and should look to try and settle, or risk a higher cost further down the line should any legal action result. THAT decision is down to you and you alone.
1. who is liable for the IP use without licence.
2. who ultimately is responsible for that cost.
1. Sadly it is the site owner who is responsible for dealing with the IP breach under UK law. HOWEVER...
2. It is the DESIGNER who is ultimately liable for the loss, and it is HE/SHE who will have to indemnify their client.
Sorry to say but the designer was negligent, he took an image and placed it on a client site, and then published it to the internet. He breached his duty of care, and as a result has caused his client to incurr costs.
I assume you have professional indemnity insurance, just pass the case to them, as that is exactly what you are paying it for.
This is 100% identical to the JA Coles case, where the designer was co-named in the case and it was the designer who settled (or his PI insurer did).
If you don't have PI insurance then you are left holding the baby and should look to try and settle, or risk a higher cost further down the line should any legal action result. THAT decision is down to you and you alone.
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Just for clarity I would say the following is as simplistic as I can make it
The site OWNER has to settle with the IP owner
The site DESIGNER has to settle with the site owner.
The site OWNER can't pass DIRECT liability to the site DESIGNER (as in telling the IP holder to deal with the site DESIGNER) as that isn't how the law works
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Getty could also go after the designer too, ending up with the designer paying twice.
The internet and webdesign is such a new industry and has had little or no regulation, it has to change soon, hopefully, despite what people think of Getty, things like this will help long term and web design will only be done by professionals not kids in bedrooms.
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No they can't go after the designer, it isn't how it works. the image rights owner is only meant to de indemnified. he can't go after two people AND accept payment from two people. That would be illegal, as they are profiteering and not indemnifying.
The claim is for illegal IP use. the designer hasn't benefited from illegal IP use, he merely caused the loss to occurr.
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they can't, see my explanation above. The site owner has been wronged by the designer, the IP holder has been wronged by the site owner, the ultimate responsibility rests with the designer, but the IP holder can't go after them as they have not used the image drectly. IP law is a complete farce.
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This is wrong. Please do not post your opinion as fact. This is a thread that is being watched by a lot of worried people so don't post misinformation and you are not helping them. Thanks.
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Are you saying a website designer can just get images from anywhere to build websites without fear of copyright infringement providing he doesn't publish them, or that after they are published responsibility is passed to the website owner?
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That is exactly what he is saying. The key words are "providing he does not publish them". It could be argued that he is publishing them when he puts them up on some kind of display or portfolio or sample for the customer to view and agree. In which case if getty can see this too, they will go after the designer independently for the time he "published" the images.
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bdw
No, I am not saying that at all. All I am saying is that website owners are responsible for any copyright infringements on their websites. This is a fact that was clearly established five or more years ago when this process kicked off. The imaging companies even make a point of telling people this in their letters.
Web designers who do as you suggest leave themselves open to action by the website owners but they are not held responsible by the imaging companies for the original infringement.
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That would still be considered private use. If you think about it the imaging companies would lose out on a lot of business if web designers and other professionals could not use comp images. It's an accepted practice.
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Yes, but they are still obtained on licence, not just taken from anywhere.
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I suspect that somewhere deep inside a law book there is a detailed definition of what is defined by "publishing" and what is accepted by fair use of a copyright image.
In reality if a web designer used an image and never put it on the internet but just sent a PDF of a web page mock up to a customer then Getty will never actually see it and thus never argue the point.
If however the web designer put the mock up on the internet, just to show the customer, then there remains the possibility that a getty spider would find it, thus consider it published, and the web designer gets an invoice.
In the end it will be up to a court to decide ( if it ever gets to court). Getty would take the easiest and more obvious cases to court before they ever decided to go after the harder ones. They want a track record of winning, not loosing. To date they have only taken one company to court. I have no idea how many cases are settled before they get to court.
In reality if a web designer used an image and never put it on the internet but just sent a PDF of a web page mock up to a customer then Getty will never actually see it and thus never argue the point.
If however the web designer put the mock up on the internet, just to show the customer, then there remains the possibility that a getty spider would find it, thus consider it published, and the web designer gets an invoice.
In the end it will be up to a court to decide ( if it ever gets to court). Getty would take the easiest and more obvious cases to court before they ever decided to go after the harder ones. They want a track record of winning, not loosing. To date they have only taken one company to court. I have no idea how many cases are settled before they get to court.
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Thanks,
I know this thread and most the posts are about Getty, but I am talking about taking images in general.
I know Getty use the easy route and go for the site owner rather than the website designer, but probably just because they suspect the site owner will fold rather than the designer.
Ignoring what Getty do, it would be nice to know what would happen if a designer started lifting images from a professional photographers site to use for making mock-ups and the photographer found out.
I know this thread and most the posts are about Getty, but I am talking about taking images in general.
I know Getty use the easy route and go for the site owner rather than the website designer, but probably just because they suspect the site owner will fold rather than the designer.
Ignoring what Getty do, it would be nice to know what would happen if a designer started lifting images from a professional photographers site to use for making mock-ups and the photographer found out.
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The legal claim is for loss of revenue and is directly related to the number of people who seeit (same as libel defamation etc) an image being used as a position in a private viewing is not going to have any kind of loss attached. I understand what you are saying, but you are mixing up many issues and rolling them into one, and IP law doesn't work like that, it is way more complicated.
If the designer places the image on his own server on a domain he owns (eg. designersdomain.com/clientdemo/ ) for example then HE is the site owner and HE is liable for publishing it.
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bdw
I do know the answer, I gave it to you in a clear and unambiguous way. What I don't know is how I can make it any clearer to you? :|:|:|
When I post my opinion I generally make it clear that it is my opinion. In this case it is not my opinion. It is fact.
Yes he most certainly can. It is the act of publishing the images that constitutes the copyright offence. Although I can't think of a reason why anyone would set out to build websites that were not to be published?
Here's how the image companies typically see this...
I often upload comp images to client's websites to let them preview them. If they like the images I then buy them on my account. If not then they are removed.
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bdw
As a matter of interest here are Getty's terms for the use of comps...
http://www.gettyimages.co.uk/Corporate/LicenseAgreements.aspx#Comping
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http://www.gettyimages.co.uk/Corporate/LicenseAgreements.aspx#Comping
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D
Deleted member 59730
Of course not. Copyright is an exclusive Right to Copy. If you copy an image onto a mockup site without permission you are breaching copyright.
OWG and BDW are confusing what has become industry practice with what the CDPA 1988 says.
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Don't want to get into a fight here Bob, but please read the post about 2 above yours where I clearly say it isn't right, but that the claim would be miniscule and impractical to follow. As you are well aware the 'use' of a positional for private viewing would never be taken to court, because the instant they did that they can kiss goodbye to a mountain of revenue as designers simply couldn't mock up with a view to sell.
this sort of use is common practice because there is no way any court in its right mind would award damages, against someone going to a stock library and using an image as a positional, the other question is, who would know? HOW would the image house find out that any law has been broken and what would be their claim for damages based on?
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here is an interesting question right here.
While browsing UKBF I saw an advert. The advert was using a getty rights managed image (I know this from my image plugin that flags rights on images). The image was part of an advert in the footer.
QUESTION:
imagine (for the sake of this discussion) that no licence existed, who is responsible?
SIFT (UKBF)
Certainly Sift (UKBF) wouldn't have a licence, why should they? Oh, Hang on, The image is on THEIR site, so surely THEY are liable?
BUT.
It was a Google adsense advert served by Google so surely THEY are to blame?
BUT
Google only carried the advert, it was the advertiser who is responsible for the creative.
WHAT A MESS the law is when it comes to intellectual property rights eh
While browsing UKBF I saw an advert. The advert was using a getty rights managed image (I know this from my image plugin that flags rights on images). The image was part of an advert in the footer.
QUESTION:
imagine (for the sake of this discussion) that no licence existed, who is responsible?
SIFT (UKBF)
Certainly Sift (UKBF) wouldn't have a licence, why should they? Oh, Hang on, The image is on THEIR site, so surely THEY are liable?
BUT.
It was a Google adsense advert served by Google so surely THEY are to blame?
BUT
Google only carried the advert, it was the advertiser who is responsible for the creative.
WHAT A MESS the law is when it comes to intellectual property rights eh
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