Photographic Licence

[Mitcher]

We've received a bill for £900.00 from Getty Images, who say that we've got one of their photographs on our company website and they've looked for evidence of our licence to use it and haven't found it. Hence the fine.

We've contacted the web designer who says that he was unaware that he'd ever used a Getty image and that he was aware that there was some sort of scam going on where businesses are targeted with these 'fines'.

What's the legal position, here? Do the perpetrators of the letter have to prove that they 'own' the photograph on our site? If so, how do we verify their 'proof'? So far, they've given us a reference number. If genuine, are we responsible for what's on our website - even though the picture was placed to show us the sort of thing the web designer could produce for us, and we've given them our own photographs since to replace the offending one - but they haven't done, as yet, nearly three months later). Or are the web designers responsible for any such fines, as it's they who have used the photograph?

:| Any help would be very gratefully received.

Mitcher

 

[crossdaz]

We've received a bill for £900.00 from Getty Images, who say that we've got one of their photographs on our company website and they've looked for evidence of our licence to use it and haven't found it. Hence the fine.

We've contacted the web designer who says that he was unaware that he'd ever used a Getty image and that he was aware that there was some sort of scam going on where businesses are targeted with these 'fines'.

What's the legal position, here? Do the perpetrators of the letter have to prove that they 'own' the photograph on our site? If so, how do we verify their 'proof'? So far, they've given us a reference number. If genuine, are we responsible for what's on our website - even though the picture was placed to show us the sort of thing the web designer could produce for us, and we've given them our own photographs since to replace the offending one - but they haven't done, as yet, nearly three months later). Or are the web designers responsible for any such fines, as it's they who have used the photograph?

They send these out by the boat load. A lot of images end up in places they are not supposed to - just do a search for your favourite cute celebrity - virtually every image will have been copied from another site.

They work on a numbers basis and only need a few people to cough up to make it worth their while.

If it worries you then just remove the image and forget about it. They won't do anything.

 

[richardmyers]

They send these out by the boat load. A lot of images end up in places they are not supposed to - just do a search for your favourite cute celebrity - virtually every image will have been copied from another site.

They work on a numbers basis and only need a few people to cough up to make it worth their while.

If it worries you then just remove the image and forget about it. They won't do anything.

We received similar not so long ago, being a young entrepreneur I nearly had a heart attack and instantly thought the two years building up my business were about to disappear down the pan. I've taken advice from a large number of sources not to pay this given the likelihood of it being a scam, 2 months later I've heard nothing else.

 

[Eagle]

It's not a scam - and they're well within their rights to bill you if you've used an unlicenced image. However, as stated above, if you ignore it, it will probably go away. You could also write back saying that the offending image has been removed/rebukes issued to the web designer etc etc.

 

[gregs2769]

call getty images - they will tell you what the crack is and im sure if its legit if you say you will remove it or explain that your web desinger used it then im sure they will let you of the hook

 

[Brian McIntosh]

Firstly, if you have used an image by Getty without their permission then you need to pay them. How much you pay them may come down to your negotiation skills but, contrary to popular opinion, Getty/Corbis will not go away.

http://copyrightaction.com/forum/the-real-cost-of-being-sued-by-getty

And, if you've used a web designer who has got you into this mess then it's time to get one who knows what they are doing when it comes to using licensed images in web sites.

http://www.fsb.org.uk/discuss/forum_posts.asp?TID=2651

Good luck with it.

 

[Deleted member 36037]

This topic has been running on the FSB forum for a few years..
It is not a scam.
It is a very serious issue that raises a lot of strong feelings..
Sadly, as moderator of that forum I recently had to remove the topic from public view because the advice to "Do Nothing" attracted some serious ill tempered postings, you would have found a lot of horror stories on there to help your judgement.
On one side the Photographers quite rightly want to be paid for their work and on the other there are people who have used images "innocently" without realising they have not been paid for...
I have to say on the basis of that thread there is only one advice you can be given, "Take proper qualified legal advice from someone who understands the issues".
I am amazed after all this time that the advice to "Do Nothing" is still prevelent, the pursuit by Getty of a large company has been all over the press and the internet..

 

[MikeJ]

Certainly the "do nothing" option is not correct.

I'd remove the image, inform Getty that is what you have done, apologise and explain that the image was provided to you by your web designer. Give Getty his details and let them get on with it.

While you are at fault, it's the designer that Getty should be taking this up with - you were supplied it by someone else, and would have assumed the designer had the licence to do so.

 

[MartCactus]

IF this contact is genuinely from Getty than ignoring it is not a wise course of action.

As others have said, I'd remove the image, and pass the details of the web designer to them.

Within our terms and conditions (we're a software/web developer) we have a clause that states that customers warrant that they are supplying us with images to which they own the copyright or have permission to use on their website, and that they indemnify us against any action resulting from use of those images. The reason we have this clause is to attempt to cover ourselves against customers supplying to us for use material they don't have the correct permissions to use, and us then facing a nasty-gram from Getty or whoever.

Do not ignore it. Getty make their money from licensing images - its what their business is. If they ignore people who use the images without licensing them, it would be like a cinema ignoring people who sneaked in to watch the movie for free.

If the claim is justified (ie you don't dispute that they own the copyright), ignoring it is just not something a legitimate business would do.

 

[Brian McIntosh]

Unfortunately, "I'd remove the image, and pass the details of the web designer to them" and "I'd remove the image, inform Getty that is what you have done, apologise and explain that the image was provided to you by your web designer. Give Getty his details and let them get on with it.

While you are at fault, it's the designer that Getty should be taking this up with - you were supplied it by someone else, and would have assumed the designer had the licence to do so.

The images are on YOUR site so you are responsible. Getty will still pursue you. YOU need to take it up with your web designer. Before you put the site up you should have asked for copies of the license agreements from your designer so that you were sure the images licences were paid for.

As has been stated before, get yourself a good Solicitor. They will not go away. A test case has already been through the courts and Getty won. Don't wait until it's your turn. Be proactive and get help.

 

[Deleted member 59730]

A word of warning. This is not a scam and Getty have six years to collect from you.

There are unscrupulous solicitors out there who are selling form letters at a cheap price. About £165. They are not copyright experts. If you think the demand is unfair you should read the thread on CopyrightAction and then decide to hire a lawyer specialising in Copyright issues.

 

[Brian McIntosh]

Getty have taken a case to court and won. It will only be a matter of time before the next "victim" is dragged up. Anyone in the same situation should get some legal advice from a Solicitor, not from here. Burying your head in the sand isn't an option.

 

[saxondale]

how do you know an image is "free"?

 

[Deleted member 59730]

This is from Getty's Photographer Contract...

• The photographer cannot submit any images that we accept, or any Similars, to any other Third Party for licensing until after the Agreement with Getty Images has terminated.

Getty are not stupid. I happen to know that the images they asked Picscout to search for were ones they checked they had exclusive rights to.

Look at this logically. Getty have plenty of time. They will be using collection methods which are most cost effective to them. After the removals company case they have probably had a flood of payments coming in. They have only just sent out a new tranch of infringement letters.

By not talking to Getty as soon as you get the first letter you lose any chance of a negotiated and lower figure. You also have interest ticking away daily which will be added to the bill.

 

[bdw]

Getty have consistently refused to prove that they own the rights to the images.

Getty have taken a case to court and won.

True to some extent but the cases (there have been two - both removal companies) were settled out of court. AFAIK there has yet to be a judgement on this.

 

[Deleted member 59730]

An up and coming photographer, posts his photo's here - and has 100 downloads

After 3 months, he goes Pro, withdraws the pics, and places the images at a stock library earning "£5.00" an image

2 years later the library is brought by Getty
An "exclusive agreement" is assumed - a few images are sold

5 years later, the 100 people that downloaded the free image from the first website are screwed. They get a bill from Getty, the first site has gone bust, they cant remember where the image was from...

At the time, they took due dilligence, but now they face a bill

If he 'goes Pro' he should learn about the business of photography. If not the photographer is likely to end up in deep ****.

Exclusive agreements are not 'assumed'. He must have signed or agreed a contract.

AFAIK all the demand letters sent by Getty join the photographer in the action. In other words the photographer has confirmed that Getty have exclusive rights to pursue image infringers on his behalf.

 

[Deleted member 36037]

I posted this on the FSB forum..I note there are different users here so I will share it with you..my apologies to thos who have already seen it...please note this is based on a current offer from Serif Software..
..I am asking you to visualise someone who has not seen this thread here, does not know anything about IP...In fact has just left school, loves his PC and knows roughly how to build a website..he has just been asked by his Granny to make a website showing how London has changed since she grew up because she is starting a business telling stories and giving tours of "Old London"...Granny will pay for the Webplus programme to give him a start..
.....
Please...before you all bite my head off ...first....get your head around what I have just written above...sure I made it up...but...it could easily be true....
Now....
(For info:
I have an E-Mail offer now of some images, included in that are pictures of The Gherkin and Beefeaters...according to some, these pictures cannot be free to use..)
These images are available from "Serif", I would have said they are a reputable company, the offer is in a direct mailshot to me as a customer of theirs..IF: I take advantage of that offer and give these images to my friend...coincidently the man described above..
NOTE: this is what it clearly says on the E-Mail advertising.... [FONT='Arial', 'sans-serif']What's more, because all these images are royalty-free you can use them for anything you want "" ![/FONT]
I will have done nothing wrong.....and ........ lo ...in 5 years the next incarnation of Getty presses the "Collect Now" button...
Now...sorry but I cannot fault that scenario, everything was done in good faith with images bought from a reputable company so why in heavans name would I have need to save any form of traceability ?? Why would I expect to be obliged to prove I did not steal these images sometime in the future ??
Gentlemen...I have just presented the mitigation based on actual currently available images .....It is exactly the same case as is being presented from 5 or even 10 years ago...
When someone starts in business thay are rarely an expert, that comes with experience. Experience in this particular trade was not common then...I can see people buying those images even now in good faith and getting caught...But...what will they really be guilty of, certainly not theft, at worst naievety..
The above clearly gives the reason why I believe there has to be some compromise. there is a big difference between amateur and professional in all things....but...at the time of these events happening the differences were not so big and website building was "On the Frontier".

 

[bdw]

Hard work, book keeping, organisation isnt high on the list for people chasing the grand fee of $1 per image - its a numbers game.

Exactly! Anyone can make a mistake but there are people around who will consider you to be a criminal if you make an error in this respect. Don't be surprised if you get condemned as such for your carelessness.

Watch this space!

 

[Lasting Designs]

View from a photographer, who has seen both sides of this up close and personal

1. Your VAT invoice will be Irish not English
2. They pluck the figure out of the air
3. I (photographer) have never had anything like the fee they claim on an invoice for selling an image, not even 10% of it, and my agreement is more like 50%
4. I have images in multiple libraries
5. Libraries buy out libraries that buy out libraries (and getty is at the top of the food chain in that game). Proving where an image was 5 years ago, is a nightmare. Apart form that, images can be coppied, and inadvertantly redistributed as free by 3rd parties. For al you know, your image came from a free site when it shouldnt have

For Getty to start to provide a decent case, they need to prove provenence of the image. I.E. they have allways been the exclusive distributor of the image. I am a typical photographer, and I have images all over the place. Getty will be breaching thier arrangement with me if they divulged the nature of thier contract with me. In other words, to prove it, they will need to dsclose things about the photographers contract, and break the DPA + contractual agreements. For this reason, Getty has never taken one of these to court. That wont stop them trying to bully you into paying a bill that is grossly inflated, possibly or posily not applicable to you

Advice
1. Remove the images
2. Say nothing, admit nothing, discuss nothing
3. When the debt collector calls you, tell them that the invoice is in dispute. They wont be able to do anything other than go back to Getty and say they have failed, or they will be breaking the DPA
4. Repeat step 3 untill they give up

This figure out of thin air statement is incorrect I think. If I remember correctly, I saw an article some time back that they investigate the company/person whose used the photograph via Companies House and a bit of digging around. A big business might be expected to get a "bigger" bill for a couple of reasons to their thinking.

1, they can afford it...
2, they have departments that just pay up without questioning it
3, they believe that if its being used, then it has value. A why use it if it doesn't approach.
4, they can use the we'll drop the fine if you can be persuaded to sign up to use them in a legal way on certain types of business.

The little guys tend to notice the threat of prosecution and are victims of having to be "put a frightener" on those they contact. In the grand scheme of things "a little violation" seems disproportionate to the crime, but in their eyes, the agency have a bottom line into recovering costs.

That said, I'm on the side of the photographer whose invested in their craft and who deserve to royalties they are due, just like a shop keeper and their stock.

 

[Deleted member 59730]

(For info: I have an E-Mail offer now of some images, included in that are pictures of The Gherkin and Beefeaters...according to some, these pictures cannot be free to use..)
[FONT='Arial', 'sans-serif']What's more, because all these images are royalty-free you can use them for anything you want "" ![/font]

Dear Dave

Please quote me correctly.

To be clear; The pictures can be 'free to use' but not for anything you want. Imagine if you used the Beefeater picture to advertise a Soho Massage Parlour. Might he not object?

 

[saxondale]

how do I find out who ownes the copyright? or conversly is a picture "free" to use?

 

[Deleted member 59730]

how do I find out who ownes the copyright? or conversly is a picture "free" to use?

Firstly, to find out who owns the image look at the IPTC metadata. Apparently I am not allowed to post a link. Try photometadata.org with www in front of it. If you scroll over the home page image you can see what sort of data you should find.

Those pictures which their owners decide to give away will often have T&Cs published somewhere on the site which should be read carefully. One popular free images site has this buried in its terms; SXC cannot be held responsible for any copyright violations, and cannot guarantee the legality of the Images stored in its system. If you want to make sure, always contact the photographers. You use the site and the photos at your own risk!

Would you want to run a business with that type of free pictures?

 

[Deleted member 36037]

Hello Bob...
I did not quote you specifically, you are not the only one to have made that comment...although, I am happy to acknowledge that your comment above is as you responded to My posting on the FSB Forum.
My point in posting here is simple...since the concerted attack on the FSB forum 2 weeks ago has resulted in the thread being moved out of public view there are still these issues to be resolved. My post above clearly demonstrates the ambiguity in the legal interpretations even now in 2009. The more people who are made aware that there is a problem the better the chance of it being resolved for the benefit of "The Majority" in a manner that is "Fair and Reasonable" and the less likelyhood there is of newcomers falling into the same "Trap".
There is no ambiguity in the advertising from the supplier..it clearly says that the images can be used for anything, I agree that statemnt should be qualified...but...that is not the point.
I am not involved in this matter other than having been obliged to read every single word that was posted in the other forum...what I have learnt from that is there are more than 2 sides to the story and it is a nightmare for everyone involved.

 

[Lime One]

There has not been a court decision made yet on the Getty issue, only cases settled by consent covered by press releases from the professionals involved and a great deal of lay conjecture as to the legal fees involved and comments from anonymous 'sources' on various web sites.

There are a number of challenges to make on the amounts requested. We act for NAPA and write on members' behalf requesting copyright infringement payments, as well as writing those challenging the amounts claimed from well known copyright owners. Our IP team has over 25 years experience in handling IP cases, disputes and infringement cases. The majority of IP cases settle by way of mediated settlement.

These matters should not be ignored, letters asking for payment should be treated seriously, however, whilst there are limited defences open to copyright infringement, there are challenges that can be made where the amount claimed is not proportionate to the image's value. Fair payment for images is the underlying principle here so early dialogue and instant removal of the disputed image is essential.

 

[Deleted member 59730]

copyrightaction. /forum/the-real-cost-of-being-sued-by-getty

Will give some idea of the risks of taking bad advice.

I am still prevented from posting links. put a com after copyrightaction.

 

[richardmyers]

Ooooook, thanks for the sound advice folks.

What happened here was that I enlisted a designer to make a new website for my company, they used an image from the 'Sample Pictures' section of Windows Vista as a place holder, 1 week later I purchased images from stockxpert.com. 4 months later the Getty letter arrives. Low and behold the designer doesn't want to know, I'm a young entrepreneur with a very small business and I couldn't hope to get my hands on £1215 any time in the next few years; let alone legal costs etc for advice.

I understand Getty's position entirely and agree with them; it is my own fault for not checking where the designer got the place holder image from.

Solutions on a postcard please!

 

[richardmyers]

Ooooook, thanks for the sound advice folks.

What happened here was that I enlisted a designer to make a new website for my company, they used an image from the 'Sample Pictures' section of Windows Vista as a place holder, 1 week later I purchased images from stockxpert.com. 4 months later the Getty letter arrives. Low and behold the designer doesn't want to know, I'm a young entrepreneur with a very small business and I couldn't hope to get my hands on £1215 any time in the next few years; let alone legal costs etc for advice.

I understand Getty's position entirely and agree with them; it is my own fault for not checking where the designer got the place holder image from.

Solutions on a postcard please!

Please ignore this.