Getty images unauthorised use letter

[OldWelshGuy]

Sorry I am confused now. The point I was making is that the judgement has set clear precedent that in cases where the defendant believed they had the right to use the image (as in where they have paid a designer to build their site), then the maximum claimed is effectively the licence fee, as damages are barred.

I wasn't for one second stating that it is a defence and that anyone was innocent, that is beyond question.

 

[UKSBD]

Sorry I am confused now. The point I was making is that the judgement has set clear precedent that in cases where the defendant believed they had the right to use the image (as in where they have paid a designer to build their site), then the maximum claimed is effectively the licence fee, as damages are barred.

What makes you think that?

You highlighted S 97 as a defence, but S 97 doesn't apply to making a mistake about copyright ownership, it relates to not thinking copyright exists. (ie when you think it may have expired)

 

[OldWelshGuy]

I didn't highlight it as a defence, all I did was lifet a statement by the judge, I was not (I repat again) using it as a defence, the complete opposite in fact (as I just stated twice in previous posts).

I have stated twice what my take from this is, and that is that in the case of what some believe is innocent infringement (which doesn't exist in copyright cases) the precedent has been set that no damages may be claimed beyond a normal licence, you seem not to be able to grasp what it is I am trying to say, maybe it is me not explaining it well enough, or you not reading it right, I don't know which. I don't see how I can make it any more clear, so it seems we have a communication problem someplace

 

[UKSBD]

I am not talking about defence of the whole case.

I am talking about using S 97 for the defence of "no damages may be claimed beyond a normal licence"

You are reading it 100% opposite of what it actually says.

 

[OldWelshGuy]

deleted, can't be bothered to argue, have to go to the airport

 

[UKSBD]

You said in post 397 that the Hoffman v DARE case had set a precedence that;

"(where the defendant did not carry out the act personally), the end user (defendant) does NOT have to pay a penny more than the licence fee."

Earlier in the same post you highlighted,

"The s.97 defence would not mean that the defendant had not infringed, it would be a bar to damages."

In my reply to that I said,

"S 97 relates to something like this scenario;
Using an old photo which you thought was taken by a photographer who died 70 years ago but actually hadn't

i.e. a work where you thought the copyright had expired, but hasn't
It doesn't relate to making a mistake about who the copyright owner is or thinking you have permission when you don't."

You then implied my post was wrong.

Do you still think my post was wrong after reading everything properly?

 

[bdw]

I love this.

I don't know the answer. But outside of these personal interpretations of the law I know that people can and do infringe without knowing they have done so. In my opinion that is an innocent infringement.

.

 

[SuffolkDesigns]

I love this.

I'm gonna have to go get some more popcorn soon

 

[OldWelshGuy]

You said in post 397 that the Hoffman v DARE case had set a precedence that;

"(where the defendant did not carry out the act personally), the end user (defendant) does NOT have to pay a penny more than the licence fee."

Earlier in the same post you highlighted,

"The s.97 defence would not mean that the defendant had not infringed, it would be a bar to damages."

In my reply to that I said,

"S 97 relates to something like this scenario;
Using an old photo which you thought was taken by a photographer who died 70 years ago but actually hadn't

i.e. a work where you thought the copyright had expired, but hasn't
It doesn't relate to making a mistake about who the copyright owner is or thinking you have permission when you don't."

You then implied my post was wrong.

Do you still think my post was wrong after reading everything properly?

Nope, had some sleep now and see what I did.,. I was wrong in the interpretation in that while I stated that s97 was no defence, I mistakenly took it (due to not reading properly) that the judge had implied that s97 was the reason for him halving the claimed about. That was not the case. Apologies for getting that bit wrong.

The overall outcome is that the judge has set precedent in the way the claim for damages is worked out, and getty etc are no longer going to be able to make up numbers from the air. I also note that the judge stated that the defendant pay the plaitiffs costs (which I would imagine will be huge).

 

[UKSBD]

Thank you,

that's all I was saying, S 97 can't be used as a defence in this scenario (not defence of case, but defense of the 2nd part, about damages)

The scenario I gave above is what S 97 can be used for.

I'll give another scenario to try and explain more clearly.


I go around to my elderly neigbour who has 20 old photos

He gives me the photos and tells me they were taken by his father who died in 1940

I put those on a website because there is no copyright on them (expired)

It then turns out that 1 of those photos was taken by his brother who died in 1943

I am now using this one copyrighted photo by mistake.

S 97 would come in here, it wouldn't be a defence of using the photo, but it would be a defence about extra damage.

Do you agree with that scenario?

 

[OldWelshGuy]

I do understand how this works, it is where the defendant had no reason to believe copyright exists, I was not claiming it as a viable defence, have never claimed it as a viable defence, at any time in the last 5 or more years since researching it.

I took the judges statement to read that while it was no defence against GUILT, it was a factor in determining damages. It appears that while this is what the judge did, it was not connected, I made a connection that didn't exist.

In determining damages (cost of images, reparation call it what you will) the judge refused to accept the claims of the photographer for the full value doubled and 8% interest rate addeed.

The most ironic thing in all og this is that the defendant made an offer of £50k to settle, he refused, and ended up with £10k

 

[bdw]

it was a factor in determining damages.

It is interesting to note that the formula used by the photographer to calculate his claim was not too dissimilar from that being used by Getty. In the highly unlikely event (IMO) that Getty would now ever consider taking anyone to court in the UK they would be subject to the same or similar reductions.

If they did take anyone to court it is likely that the bullying and harassment tactics they have been using over the years would also be taken into consideration by a UK judge.

I believe that this is another significant ruling that will go a long way to controlling "ambulance chasing" photographers.

.

 

[OldWelshGuy]

It is interesting to note that the formula used by the photographer to calculate his claim was not too dissimilar from that being used by Getty. In the highly unlikely event (IMO) that Getty would now ever consider taking anyone to court in the UK they would be subject to the same or similar reductions.

If they did take anyone to court it is likely that the bullying and harassment tactics they have been using over the years would also be taken into consideration by a UK judge.

I believe that this is another significant ruling that will go a long way to controlling "ambulance chasing" photographers.

.

This is what I was trying to say, in that this precedent blows a hole through the exhorbitent speculative invoicing, and that anyone now wishing to settle, can use this as a yardstick.

I wish to state again (for the record not in reply to you ) that I believe photographers deserve to get paid, I believe that they are due compensation for any loss suffered, but by its very nature, it should be compensation, and not betterment (which is what the Getty speculative invoicing system attempts to achieve)

 

[UKSBD]

The most ironic thing in all og this is that the defendant made an offer of £50k to settle, he refused, and ended up with £10k

It wasn't the defendent who made the £50k offer it was the Government website who initially used the images and said they were Crown Copyright.

Chances are the photographer got his £50k of them too.

The defendant was just one company using the images.

If 10 different companies used the images assuming they were Crown Copyright all 10 could be liable.

The Open Government Licence has a clause in the terms effectively saying it's not their fault if a mistake is made.

What this effectively means is Never use Crown Copyright images even if you have been granted a right to under the OGL as it can't be used as a defence and isn't worth the paper it is written on.

What I would really like to see is someone test that clause by making a claim against the Government when they mistakingly label something as Crown Copyright

Did someone say Minefield....

 

[OldWelshGuy]

yep, I picked that up in his statement saying that it was not sure what the money had been offered for. He couldn't have accepted that though surely, as that would be double dipping, which is illegal. You are only entitled to compensation from one source otherwise it becomes obtaining moeny by deception or possibly extortion. As you say, total and utter minefield.

 

[UKSBD]

Just to give another scenario (I like scenarios )

Remember the big ho-ha when it was discovered a Photographer was being paid by the Government to take photos of David Cameron?

When he was paid by the Government those photos were used on the number 10 website as Crown Copyright.

There was a big fuss so he was taken off the payroll

You now have the ridicolouse situation where the number 10 website is a mixture of Crown Copyright and non Crown Copyright images taken by the same photographer.

The webmaster of the site is supposed to label which are which, but if that webmaster makes a mistake it is the person who uses the image who suffers.

It's effectively made the OGL a waste of time and using Crown Copyrigjht under licence too risky

 

[UKSBD]

yep, I picked that up in his statement saying that it was not sure what the money had been offered for. He couldn't have accepted that though surely, as that would be double dipping, which is illegal. You are only entitled to compensation from one source otherwise it becomes obtaining moeny by deception or possibly extortion. As you say, total and utter minefield.

I'm not arguing with you as I don't really get what you are saying,

But that would imply once someone has been found liable for using an image and paid, that image then becomes free for anyone else to use.
I can't see how that can be right.

You may only be able to claim compensation from one source, but surely not a licence fee?

I can see no reason why the photographer shouldn't have a claim against the gov website and anyone else using the images, just because they have sussesfuuly claimed of 1 company allready.

 

[OldWelshGuy]

Sorry I am not really making myself clear I think

What I was saying is that it was noted in this case, that the Gov website had made an offer to settle. it was noted in this case, so it would be fair to assume that there is a direct connection ot the settlement otherwise it would not be allowed to have been mentioned and certainly would not have been discussed.

So what I am saying is that IF the photographer had settled with the GOV site, and IF part of that settlement was that the use of the images by the related site (this quasi gove site) then even though the judge set the amount of damages, the photographer would not be able to collect it twice, he would only be allowed to get compensation from either or, and not both.

This of course depends on the wording of the original settlement which is why the judge has mentioned it, and the scope. You can't be compensated twice for the same thing.

 

[Deleted member 59730]

It is interesting to note that the formula used by the photographer to calculate his claim was not too dissimilar from that being used by Getty. In the highly unlikely event (IMO) that Getty would now ever consider taking anyone to court in the UK they would be subject to the same or similar reductions.
.

It works out at £526.37 per photo plus 4% interest over 4 years. The judge took into account the fact that the type of images and the use was in a sector where higher fees would not normally be charged. That leaves open how much a judge would award a Getty image using paid for models in a commercial website.

(What is also interesting is that the judge gave no leniency to a stated charity.)

 

[ArchiveMe]

....Bob and OWG for the info - think our case has probably 'gone away' now then.

 

[UKSBD]

It works out at £526.37 per photo plus 4% interest over 4 years. The judge took into account the fact that the type of images and the use was in a sector where higher fees would not normally be charged. That leaves open how much a judge would award a Getty image using paid for models in a commercial website.

(What is also interesting is that the judge gave no leniency to a stated charity.)

He also took in to account there were 20 images and common sense says that if you are getting 20 images of a photographer you wouldn't pay 20 times the cost of one image but would negotiate for the package.

I'm surprised it was only reduced by half, if I was to buy a licence for an image of a photographer for £100 and said I want a package of 20 similar photos I would hope for a better deal than 50% of £2,000

I honestly can't see why OWG sees this as a shot accross the bows of Getty sending out letters, I see it as the exact opposite and clarifies that they can claim industry standard rates despite whether people make mistakes about copyright.

You can understand people getting upset if it is a typical istock type photo which you can get a licence for under £10, but assume Getty only really go after people using the RM images?

The other annoying thing is some RM images appear to be no better than Royalty Free ones, and you do wonder if they are classed as RM just so Getty can do what they do?

 

[OldWelshGuy]

He also took in to account there were 20 images and common sense says that if you are getting 20 images of a photographer you wouldn't pay 20 times the cost of one image but would negotiate for the package.

I'm surprised it was only reduced by half, if I was to buy a licence for an image of a photographer for £100 and said I want a package of 20 similar photos I would hope for a better deal than 50% of £2,000

I honestly can't see why OWG sees this as a shot accross the bows of Getty sending out letters, I see it as the exact opposite and clarifies that they can claim industry standard rates despite whether people make mistakes about copyright.

You can understand people getting upset if it is a typical istock type photo which you can get a licence for under £10, but assume Getty only really go after people using the RM images?

The other annoying thing is some RM images appear to be no better than Royalty Free ones, and you do wonder if they are classed as RM just so Getty can do what they do?

now we are getting there, this is where I haven't made myself clear enough Getty have sent invoices to people for amounts of £2000 (example) when the invoice sits on their site at £125, this is what I am saying is a shot across the bows. Also when challenged, Getty have been alleged to have moved the image from a cheaper site to a more expensive one. there have been a number of instances of this being alleged.

If someone uses someone else's property then they should pay, there is no question about that. it is the amount that is being questioned by myself.

I see no way (based on this ruling) that Getty (or anyone) can justify an invoice for £2000 for a £125 image.

 

[Deleted member 59730]

You can understand people getting upset if it is a typical istock type photo which you can get a licence for under £10, but assume Getty only really go after people using the RM images?

The other annoying thing is some RM images appear to be no better than Royalty Free ones, and you do wonder if they are classed as RM just so Getty can do what they do?

As far as I am aware Getty also go after infringements of RF images. In many cases the production values of RF images are the same as RM images. I heard from one US based photographer who told me that Getty had successfully settled 3 instances of infringed RF images.

 

[UKSBD]

I see no way (based on this ruling) that Getty (or anyone) can justify an invoice for £2000 for a £125 image.

How do we know Getty are doing this though, and why would they?

In my opinion the ruling sets a precedence that industry standard rates, plus damages, plus costs will apply, and far from it stopping Getty sending out invoices, it could open the floodgates

 

[bdw]

I believe photographers deserve to get paid

So do I. That has never been in dispute.

My problem is with hard line photographers who state that there is no such thing as an innocent infringer. If someone is put in a position where they are held responsible for an infringement in a situation where no reasonable person could blame them then morally they are innocent IMO.

Part of the judgement said: The first matter is whether the defendant has a defence under s97 of the Act. That section applies if the defendant did not know and had no reason to believe that copyright subsisted in the work. If it applies then no damages are awarded.

 

[UKSBD]

As far as I am aware Getty also go after infringements of RF images. In many cases the production values of RF images are the same as RM images. I heard from one US based photographer who told me that Getty had successfully settled 3 instances of infringed RF images.

I was reffering to the typical under £20 Royalty Free image you can get from Istock and similar places.

I can't imagine Getty bothering to going after many like this when there are far more expensive ones to go after.

 

[OldWelshGuy]

How do we know Getty are doing this though, and why would they?

In my opinion the ruling sets a precedence that industry standard rates, plus damages, plus costs will apply, and far from it stopping Getty sending out invoices, it could open the floodgates

It has been documented a few times that getty have done this, although of late their demandsappear to be more sensible. e.g £800 for a £300 image (which for me seems more reasonable).

Getty are right to go after people using their images (or images of people they represent), but they must do it fairly and within the law, which is all I have ever campaigned for them to do.

@BDW. there is no innocent use defence to the LETTER of the law, but there is in the SPIRIT of the law, and while the letter of the law determines guilt, the spirit of the law determines damages etc.

I can see the law being changed, because the other thing that was re-enforced here is that it is covered under the broadcasting/transmission of the images. So the name on the website doesn't really indicate guilt. e.g if you are renting a website then the owner is the one responsible? Maybe?

 

[UKSBD]

So do I. That has never been in dispute.

My problem is with hard line photographers who state that there is no such thing as an innocent infringer. If someone is put in a position where they are held responsible for an infringement in a situation where no reasonable person could blame them then morally they are innocent IMO.

I agree with you, but the law doesn't

"Part of the judgement said: The first matter is whether the defendant has a defence under s97 of the Act. That section applies if the defendant did not know and had no reason to believe that copyright subsisted in the work. If it applies then no damages are awarded."

The Judge rejected that part in the case OWG is talking about (also it only relates to the damages, not the whole case)

 

[OldWelshGuy]

Hopefully with the new court system in place, getty will follow a morally correct route, issue offers to settle, then if not settled, go immediately to the new court system. It is terrible the way they have stressed people out and used the threat of high costs as a stick to beat people with.

Justice has to be served, but if it is unjust, it becomes retribution.

 

[Austin_Mason]

I can understand any photographer who manages their own image sales having a problem with copyright infringement because it is clear that there is an infringement.

In the case of Getty their approach is prove you have a licence or pay up, which is fundamentally wrong because Getty acquire a lot of images long after creation or photographers will move their photos over to Getty after creation.

If somebody can't produce a licence it doesn't make them automatically guilty of copyright infringement. It may be nothing more than poor record keeping where an image was licensed prior to Getty managing its rights which doesn't make anything payable to Getty.

It doesn't help that Getty always refuses to provide any documentation until discovery where significant costs will have been incurred.

 

[OldWelshGuy]

I can understand any photographer who manages their own image sales having a problem with copyright infringement because it is clear that there is an infringement.

In the case of Getty their approach is prove you have a licence or pay up, which is fundamentally wrong because Getty acquire a lot of images long after creation or photographers will move their photos over to Getty after creation.
The request is that getty prove they have exclusive rights on the image and haeld them at the time the site was built. If this isn't the case then getty will likely lose.

If somebody can't produce a licence it doesn't make them automatically guilty of copyright infringement. It may be nothing more than poor record keeping where an image was licensed prior to Getty managing its rights which doesn't make anything payable to Getty.
it is the duty of any site owner to make a note of the prevenance of all materials used. I agree most don't, but that doesn't nor should it, lessen the guilt. If the image was pre-getty then fine, no payment due to THEM (there could be a prior rights management agreement in place, or the photographer himself)

It doesn't help that Getty always refuses to provide any documentation until discovery where significant costs will have been incurred.

How can they produce document prior to discovery of the infirngement by LAW the plaintiff only has to provide such evidence as part of the evidence disclosure, but they DO have to attempt to prevent the matter going to court, and if they have ignored a request for confirmation that they are the sole representative etc, then they seriously weaken their case. Judges do not like having the valuable court time wasted, and if EITHER party is shown to be obstructive in the due process, then it is fronwed upon.

I have replied inline

 

[UKSBD]

Hopefully with the new court system in place, getty will follow a morally correct route, issue offers to settle, then if not settled, go immediately to the new court system. It is terrible the way they have stressed people out and used the threat of high costs as a stick to beat people with.

Justice has to be served, but if it is unjust, it becomes retribution.

I think the ony thing we disagree on is (I think) you see this as slowing down the invoices Getty send out, I see it as possibly opening the floodgates and far more invoices being sent out.

 

[OldWelshGuy]

Actually we agree on that as well, I believe that the judgement will lower the claim amount to an amount that is reasonable and reflects the offence. I think we will see getty send out possibly more, but they wil be for lower amounts and they may well use the new system to get them to court quicker

I have always said that there are multiple groupls here and the group I feel most sorry for is those who have paid a designer to build their site and, in good faith paid out money, only to have been scammed.

Those who just took the image from the web well that is crazy behaviour, and has come about from the 'everything on the internet is free' mentality. I spoke to someone the other day nad he said 'I got it from the web' When I asked WHERE on the web, he replied 'it doesn't matter as it is on the web so in the public domain':|

 

[Austin_Mason]

"How can they produce document prior to discovery of the infirngement by LAW the plaintiff only has to provide such evidence as part of the evidence disclosure, but they DO have to attempt to prevent the matter going to court, and if they have ignored a request for confirmation that they are the sole representative etc, then they seriously weaken their case. Judges do not like having the valuable court time wasted, and if EITHER party is shown to be obstructive in the due process, then it is fronwed upon."

Discovery being the process when a suit has been filed, not discovery of the infringement. Perhaps what you refer to as evidence disclosure.

If somebody wrote to me asking for money I would at least want to know their claim was valid and would think it perfectly acceptible to ask for documentation proving their claim that was more than the screenshot of the website and a link to the image on their site.

 

[OldWelshGuy]

getty do write back and confirm that they have the sole image rights, but they also state they will not provide such information until the matter goes to court. The reason for this I beleive is that while they have a signed contract, that contract ois covered by confidentiality, so what Getty do is ask the photographer to sign an affidavit, and it is this which they use 9along with the contract) as evidence at court.

 

[UKSBD]

Those who just took the image from the web well that is crazy behaviour, and has come about from the 'everything on the internet is free' mentality. I spoke to someone the other day nad he said 'I got it from the web' When I asked WHERE on the web, he replied 'it doesn't matter as it is on the web so in the public domain':|

I set up a Wordpress site for someone last week.

Emphasized over and over again about not using any images on it except his own photos.

Went and had a look this morning and it has at least half a dozen images including an istock image (still with the istock watermark) as the background :redface:

Whenever I set sites up for people now, I never register or host them, I show them how to register at 123-reg, and send them to a host to set up hosting inn their own name.

I'll set the basic Wordpress site up for them and that's it.
Problem is, I can't even make a back up of it now as I don't want the images on my system.

 

[Austin_Mason]

getty do write back and confirm that they have the sole image rights, but they also state they will not provide such information until the matter goes to court. The reason for this I beleive is that while they have a signed contract, that contract ois covered by confidentiality, so what Getty do is ask the photographer to sign an affidavit, and it is this which they use 9along with the contract) as evidence at court.

Which puts people in the position of paying a claim for potentially over £1,000 and taking Getty's word for it that they are right to claim here, or risk paying large attorney fees if Getty files suit.

 

[OldWelshGuy]

@Austin Mason Yep, but that is the very thing we are hoping to see go away by the introduction of the new fasttrack system for compyright cases.

@UKSBD

Problem is, I can't even make a back up of it now as I don't want the images on my system.

indeed, part of the judgement was that compensation was allowed even after the images were removed from the website, but remained on the server. This is why the law needs to be changed.

 

[bdw]

Whenever I set sites up for people now, I never register or host them, I show them how to register at 123-reg, and send them to a host to set up hosting inn their own name.

So do I on most occasions and I also explain copyright infringement to them. I tell them that they cannot just use any image that they find online but some of them don't seem to be able to take this in (despite it being highlighted in my T and Cs).

[FONT=&quot]1. [/FONT][FONT=&quot]Clients Responsibilities with Regard to Copyright: [/FONT][FONT=&quot]In situations where the client provides images, text, animations, layouts or any other content for their website they are legally responsible for ensuring that this material does not infringe any copyright. [/FONT]

 

[OldWelshGuy]

I hada clause that stated along the lines of . " The Client agrees to indemnify the company should any claim for infirngement of any rights arise as a result of the materials provided by the client."