Getty Images - unlawful use of pictures

Really sorry to hear that Alec - not a nice thing to be accused of. Not got much legal input into this thread but if you remember the web address of the place you got these images off, you could try putting it into the wayback machine as the page is more than likely to have been cached in some way shape or form so you could maybe use that as proof that you thought they were free to use.

It's here: http://web.archive.org

Very useful, and quite funny looking at archives of the microsoft website from 1996 even if a little geeky

All the best, hope you get it sorted.

Cheers

Chris

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Alec

If you email me direct I would be more than happy to give free initial advice

Jonathan

Black White and Grey

www.bwglaw.co.uk

advice@bwglaw.co.uk

Hi Alec
If you send me your email i will send you the bits i have researched for you and you could pass them
on to Jonathan who has offered to help which could save him time.

I think i have the section of the relevant Act that might help.

I also need answers to these questions
1. you said you got the images from a website that is no longer there can you remember the name at least. (it might be traceable)

2. What was your site about
3. Was it giving advice or educating people
4. Was it entertaining people
5. Did you make money from the site
(b) the images in question is it a business site
6. Have you ever visited the getty site.

send me these for now

cheers
Paul

Hi Mishpaul

Thanks that info would be great. Could you mail it to al_scuba1@hotmail.com

Unfortunately I can't remember the name of the site either, it was about 18 months ago. The pictures were on the homepage of my asbestos surveying site - www.artisansurveyors.co.uk

They could not have directly brought in revenue as such. I had never seen the Getty site before they billed me.

Thanks

Alec

Firstly, I must say that an image is an image whether it is a thumbnail for web or large format high resolution for print, the same copyright, royalty and licensing rules apply, so you wont be able to get away with saying it's only a small image. Also Getty dont really differentiate their products for business/non-business/charity use, especially their fixed price images, so you probably wont be able to go this route even if it is a non-business website.

Secondly, the web is rife with sites that break copyright, royalty, licensing, and permission rules regarding images, probably more so than the pirating of music, video and other digital products (e.g. games). This means that you have to be extremely careful when using images from other sites, even if you've paid for a web template or a cheap website, that template or website may not have distribution rights on the images it contains. If its a good image and you are getting it for free then chances are that you are breaking some rule. If its a good image and you are getting it for cheap, or as part of some cheap website, you still may be breaking some rules because it may in fact be pirated (pirated = copied, distributed and sold without the relevant rights and permissions to do so). The search engines don't help, making it easy for people to find images, but not making it clear that they cant do anything with those images once found. The safest approach is to create your own images, or get your images from reputable distributors.

I'm surprised that you didn't first receive a cease and desist email from Getty, it does strike me as a bit heavy handed on their part (but I guess they are there to make money). If you had a .com website then it could have been because it is easier for Getty to get heavy handed with website owners in its own country, so they may have a threaten and bill first policy for US based websites, and a cease and desist first policy for non-US websites. If your site was a .com site and they are are just communicating with you via email they may think you are US-based, even though you are UK.

If the bill is just the standard bill for the images then it is good Karma to pay it, you did after all use their products on your website. If they are billing over the odds, then you could try to plead ignorance, emphasise that you are UK-based (this may help since more difficult to prosecute). and you have removed the images from your site, and you are willing/happy to pay the standard price for the images.

If you need to find the original site in question, then you could try using the search engine's image finder to locate the site, however if it was a dodgy site, chances are that Getty got it shut down.

Here are some further links on the subject:
http://online.wsj.com/public/article/SB112897424251164666-HoCl03Chm2dx9Mi3hteQrriNSWg_20061014.html
www.designerstalk.com/forums/archive/index.php/t-13853.html
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Paul - www.awebapart.com - 'a web apart'
create, update your website today - the online professional site builder

We are currently involved in defending similar threats to some of our clients. We also have connections with some law firms who also have noticed a spate of such letters.

If you want to email info@limeone.com or Bob@limeone.com He will advise you on what some steps to take and what we have used in defending so far.

Thanks for all the imput. I have passed it to a solicitor who is a family friend. He has sent a pretty good letter to their solicitors so will see what happens. Just wanted to see if anyone else had any additional advice.

Thanks

Alec

Hi Alec
As you appear to be getting a lot of help and I know the answer to my questions I am just emailing you some of the snippets of informationI found to give to your solicitor, if he is not an IP lawyer (as he is a family friend he might be a conveyancing lawyer for example) it might help him, I can send other snippets as well. I am just responded with my thoughts here.

Regarding the question as to the name of the site I was going to suggest as someone else had that you trace it or if you gave me the name I would have a go, but also if you have never visited the Getty site they should be able to prove this as a company of that size thats selling items will no doubt collect information in order to contact visitors to market more products I know I seem to get bombarded once I visit a site.

If it can be proved you have never visited the Getty site and (they have to take reasonable steps to prove you have infringed copyright, which if they collect data it could only be reasonable to check that you had not visited) then it is reasonable to say that you did not know at the time or had any reason to believe at the time that you were infringing copyright which under section 97 (1) of the copy right Act 1988 would mean they could not claim damages from you, also under sections 97 (2) (b) the courts take into account any benefits and flagrency both of which i do not believe is the case here. (make sure your lawyer points this out)

I personally disagree with the replies that say pay up (they are very expensive and you have not intentionally done anything wrong, if I was in your situation I would explain I aquired them in good faith to the best of my knowledge (as you aquired them from a site that you thought was legitimate to do so) therefore you have no guilty mind or intention which is relevant for you to have commited infringment, see the section 97 I have sent you, also I would suggest to them that they look at their computer database to see that I had not visited their site, if they say that is not possible then I would say then you cannot prove that I have committed infringement as they cannot prove you did not innocently acquire them from your 'legitimate' source and if they try to pin a criminal infringent on you they have to prove beyond all reasonable doubt that you took the images with intent / guilty mind. If it is possible for them to do so then they can prove you did not visit their site which shows you were not to the best of your knowledge infringing any Getty copyright ( again no bad intention ) as you obviously aquired them elsewhere But the fact that you have asked them to do this will show that you are trying to prove your innocence and they should take reasonable steps to prove otherwise.

Ask them what sites they have closed down as it might jog your memory (tell them you are trying to co operate) which might lead to tracing the site.

Finally if they are unreasonable and keep persuing you without taking into account the facts that you have told them and without trying to co operate with your co operation with them (Eg if they just keep threatening court action knowing the situation as you state it without trying to take reasonable steps to resolve it as you are, then they could well be guilty of Harassment.

I could say more but as I have said I am sending a link to the copyright act 1988 for you to look at and highlighting the section 97 Show it to your solicitor

Paul

Hi Paul,

Thank you very much for all the info. It is very useful and informative. I will pass it on to my solicitor. Cheers for all your help.

Alec

p.s. Paul, where do you get all this info? Are you a solicitor or just interested inlaw?

Alec

I notice that 'Paul' didn't see fit to confirm where he got his information from or on what professional basis he makes his assertions. And, with all due respect, I have to take issue with what he wrote.

I've spent some 27years in the television industry, many of them running corporate video production Companies And for much of that time I’ve also worked as as part time stills photographer and freelance cameraman. Currently I run a small production Company as well as lecturing (part time) in multimedia production at Stow College in Glasgow. One aspect of this activity is teaching students a little of their rights and responsibilities with respect to I.P. rights. That being a minefield through which everyone involved in any form of media production must tread softly! Preferably hand-in-hand with a tame, specialist, lawyer!

I’m not a lawyer; and my professional background qualifies me only to point out the pitfalls. The only legal advice I’d presume to give is get professional, qualified legal advice!

As for ‘barrack room’ advice: well, however well intentioned it has to be taken with extreme caution. As a media professional I'd say, again with no disrespect intended, Paul’s 'advice' is potentially dangerous and that you certainly need the help of an I.P. Lawyer based in the appropriate part of the UK. (I.P. laws are, as far as I know, identical throughout the UK but Scotland does have it’s own legal system and it’s as well to have someone acquainted with any quirks of that system if it affects you. )

Bottom line is that whilst discussions like this are useful and educational the law is no matter for the tinkerings or rank amateurs. DON’T even take my word for it; speak to a specialist; and it has to be a specialist lawyer.

With that said though I’d like to pick up on one or two points.

Let’s consider Paul’s assertion that they apparently cannot prosecute you because they cannot prove you had the ‘mens rea’ or guilty intent of depriving them of their intellectual property rights. He essentially says that if Getty can’t prove you ‘stole’ the images ‘from them’ then they cannot prove ‘mens rea’. Not so!

It matters not one jot from where you obtained the images in this respect. No more than if you were in possession of stolen roof tiles would it matter if you had stolen them yourself or bought them off a guy ‘down the pub’. The theft of property being one crime, possession being another; It would be up to YOU to prove that you had obtained the item in good faith to avoid (successful) prosecution for possession and possibly the theft itself. ( a flawed example in legal terms I know but a useful one in principal)

The possession (and to an extent the theft) element in this case being evidenced by the very fact that you had the images in question in use without the agreement of their rightful owners; something that is not in dispute! Evidence of the ‘crime’, (and therefore the mens rea) is very much available! It’s up to you to counter that evidence.

To cite, in defence, this part of the act in the way suggested it is (I believe) incumbent upon you to prove you did not have the mens rea by providing the court with evidence that you had taken all reasonable steps to ensure that the I.P. rights of the originator had been satisfied. To that end a record of some transaction or agreement between you and the provider would be called for. At the very least some evidence that the provider existed and the exact terms of the licence you were granted is essential.

It’s also worth mentioning that pleading ignorance of the originators I. P. rights is no defence either; this pops up surprisingly often in prosecution.

Much depends on which courts Getty propose taking legal action in. They are a U.S. based Company, and though they have a presence here, if the action is originating from the U.S. that may prove very tricky and expensive to defend. It may well be the case though that several people have been caught out similarly by this rogue site. If a body of evidence can be provided (perhaps by seeking out other victims) to verify what you claim this might, just MIGHT provide you with the glimmer of a defence; but again this is a question for a specialist.

Getty are a large firm with plenty of legal clout behind them. And it does pain me to see such heavy handed tactics directed by such a large firm against small businesses and individuals and this brings to mind some general thoughts; IF Getty have indeed closed this particular site down themselves and are now chasing the victims that would appear to be a very poor strategy.

For one they run the very real risk of raising the hackles both of potential licensees (i.e. their own customers) and I.P. providers (i.e. their suppliers). Having been ‘stung’ by the might of Getty will you buy from them in the future? One thinks not! Likewise do I as a photographer (and small businessman) really want to be associated with or trust the management of my rights to a squad of corporate storm-troopers?

There is also the point that it’s only a matter of time before sufficient numbers of ‘victims’ get together and lodge a defences as above; even if it fails it’s bad P.R. for Getty; raising the purchase/supply issues outlined with increasing numbers of otherwise uninvolved Companies.

If it were the case that you’d obtained these images (say) as part of a web design you’d bought in, and were supplied with them by the web designer, then I would think it worthwhile attempting a defence on this basis. In such a scenario I’d suggest that you might have a case against the web designer as would Getty. And it would be in their interests to bring you ‘on side’. As you can’t even prove where the site was, let alone that this is where you got the images from, I suggest that you really don’t have a defence and should consider paying the monies due.

This all rather illustrates one of the follies of engaging amateurs or so-called semi-professional (one either is a ‘PRO’ or one is NOT in my opinion) designers and media producers. Or indeed indulging in D.I.Y. design of commercial sites; A true professional would have known and taken the correct steps necessary to clear copyright on any and all material on your site. Be warned; there are plenty of ‘duffers’ out there masquerading as legitimate producers and designers who can land you in VERY hot water through their lack of knowledge. Some are quite plausible and excellent at the actual design and execution of their products and services; But there’s a very good reason why TRUE professionals demand the rates they do. And why no legitimate professional will take an in-any-way-casual or slipshop approach to matters such as production contracts or copyright agreements.

In this case it would probably have been cheaper and better to have engaged a local photographer and commissioned pictures yourself. As I understand it Getty will be looking for about $700 to licence an image; around £400? For that sort of money you’d (for instance) have got the benefit of my 30 years of photographic experience for the day as well as the facilities (equipment etc) that I’ve invested in….. With an exclusive and assured licence to use the dozen or so unique, top quality images I’d have provided you with whenever and whatever way you like; flyers posters brochures etc etc etc… And the prestige of using an award-winner to generate your promotional material.

As it is now £400 will buy you just a tad over 3 hours of a decent High St solicitor’s time, not to mention the potential costs (time and money) of going to court and finally making settlement… and the possible negative P.R. (i.e. potential press coverage etc) of being the firm who’s website featured dodgy ‘knocked off’ images….

The same goes for ANY piece of creative material; music, graphics, writing designs, html code etc etc etc… 99 times out of a 100 it’s cheaper to pay the money and have it PROFESSIONALLY made! And make sure it is PROFESSIONALLY done!

Matt Quinn.

www.tfgtv.com

Corporate Communication for SMALL Businesses!

reading through this forum i would like to point out that the analogy to stolen roof tiles is not relevant for the simple reason that such a crime does not have a section 97. Stolen roof tiles are dealt with under the Theft Acts and similar legislation. Getty is trying to use the Copyright, Designs and Patents Act 1988 which does have a s97 defence.

If you say i got it from another site then surely the burden falls on Getty to disprove that statement. Simply insisting he must be lying because he cannot show us that other site is not in my opnion sufficient. They ought to prove where he got it from in order to negate his statement and if they cannot produce accurate records of downloading the images from their site i would assume their case will fail. Unlike the roof tiles analogy section 97 removes the 'possession will suffice' principle.

In any event the crux of the issue is more factual than legal. The outcome based largely on the testimony of the defendant. The law is relatively simple and  its for a judge in the civil courts to decide whether the facts of the defence are reasonably sufficient on the balance of probablities. If a defendant says he got it from another site then in my submission the burden then shifts to the plaintiff to prove otherwise.

Getty themselves are breaking the law in at least 5 areas.

1. VAT - they are charging Irish VAT on UK Vat registered businesses.

2. Disability Discrimination Act - their web-site is totally inaccessible to disbaled users.

3. Competition Legislation - their charges for the same image vary by unfair amounts depending on what country/region you live.

4. They are downloading all the images on your site without your consent. The screenshot of your site they sent you - did you give them a license to reproduce any other images in that screenshot?

5. They are not using the correct DMCA take down and desist procedure recognised under international law.

Finally if anyone could find me just one case where getty Images have successfully sued for copyright infringement where a s.97 defence has failed then i will, perhaps listen to the getty lawyers.

Personally speaking, a GFM (go forth and multiply) letter would be the absolute most they would have received from me.
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I am an experienced web developer offering very reasonable rates.
I have no intention of striving to be the cheapest around.
Some people, it seems, will work for next to nothing.
I would much rather do the job properly.
As always, the choice is yours!

Matt, I'd be interested to see your photographs do you have a link?

My company is currently another one 'at the other end' of this general copyright divide/debate, i.e. a company whose digital content is being illegally copied and distributed. We developed a PC game back in 1998, and last weekend at a local computer fair I was very surprised to find the game on sale in DVD box packaging I'd never seen before, published by a Dutch publisher I'd never heard of before (and one that we certainly didn't license any rights to). It turns out that this publisher has been selling and distributing our game from 2002 to 2006. They are currently pleading innocence, ignorance, and they dont think they've done anything wrong or owe us anything because they thought they bought the 'legitimate' publishing rights for the game from some guy who turned out to be a dodgy US 'businessman' who took their money and disappeared back in 2002! Obviously we are pursuing this.

In our case, we are a small company persuing copyright and licensing justice against a larger company.

Although I dont agree with all of Getty's business practices, in my opinion it is a bit too heavy handed and sometimes seen as a bully since it is a big company picking on small companies/individuals, Getty is still defending the rights of its smaller content owners.

Since my company has now moved its focus from game creation to web design, we have taken what we learned about licensing, IP and copyright in the gaming arena and we now take these issues very seriously today in our web design work, and we encourage and educate our clients to take these issues seriously too.
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Paul - www.awebapart.com - 'a web apart'
create, update your website today - the online professional site builder

I received a letter from Getty, dated 21st September 2006 demandng around £1300.00 + VAT (Irish VAT for the record).

I did what any decent person would do and took down the offending image and ignored their ridiculous demand which is unlawful on many points. They then wrote to me again in November, which I again chose to ignore. I'm yet to hear from them since and I'm reasonably confident that I won't.

Even if I do, I'll dispute the invoice and if they wish, they can take me and my business to the small claims court and I'll happily explain to the judge the situation...

This being that the image was placed there out of ignorance, the image has been removed which we respectfully did immediately on receipt of the letter and to take their letter and place it somewhere dark and smelly.

My advice to anyone who's received an invoice fro £5k or under - ignore it as it'll cost mor ein legal fees to chase you.

Anyone over £5k - seek some avice but sit tight, don't do anything crazy. Just see what occurs. Getty simply want you to panic and pay. Don't take that bait!

Two points I’d like to pick up on, as the law tends to see everything in black and white, it’s important to recognize though law governs business practice, it’s important to understand the nuances of the situation which is all to easily overlooked.

•Does the use of ‘multiplier fees act as a future deterrent to infringement?”.
That’s to say if “retroactive” compensation were to remain at actual cost, that isn’t sufficient deterrent enough? Regardless, it’s general consensus demand fees, extravagant as they are, are set as a psychological ploy to firstly; to enter negotiations, secondly; to legitimize time spent in pursuing infringement offences, but chiefly profit maximization, reading into this practice as ‘a legitimate revenue stream?’ based on lost revenue.

On lost revenue costs, an assumption is made that had the (infringer) known beforehand the image was royalty-free or rights-managed, they would actively engage in securing the appropriate license? It’s a reasonable deduction to make, but it is a misnomer. That said, any analogous references to stealing is a logical fallacy by consequence as it doesn’t directly address the core issue, so for purposes of clarity it’s important to remain faithful to the original position of the situation, which at best is to recoup actual costs, but lets examine that…Arguments usually fall into speculation about fees should be relative to benefits accrued, now given the variables involved, prominence, size of image, hits per page (eyeballs), the customer conversion ratio as well as the highly subjective nature of aesthetics, in its entirety isn’t it next to impossible to determine contingent benefits as a relative proportion of sales? I sense this obscures more realistic sensibilities of pricing, shaped by market and competitive forces, not flagrant extortion masquerading under the veiled guise of ‘rights-protection’ it’s contemptible as to be laughable were it not for the seriousness that underlies their supposition, i.e., in confusing non-customers with customers, and using that premise as the foundation-stone of their grievance.

• Subversion: Revenue stream vs IP flagrancy prevention. “the conflict of interest”
The argument of recouping lost revenue seems out of kilter with the entire concept of IP protection. It’s important to make the distinction between solving problems before they arise by redesigning the system to prevent future problems from occurring; and that of treating the symptom of the problem so the problem remains and continues to reoccur. In light of the situation, evidence suggests that resources employed and deployed from Getty are heavily weighted in favour of the latter of the two options, that’s become somewhat of an industry panacea, which is unfortunate for all involved. But given it isn’t so much an option as choice is probably why this practice is looked upon abhorrently and with distain when viewed through the lens of ‘rights-protection’. It causes stress and disruption in a way that doesn’t even begin to address the actual situation… which is how do we stop people/companies from using imagery without our permission? Note; this is a very different question to ‘how do we create top-line growth?’ (I find it questionable that an entire industry has arisen from this self-perpetuating ignominious practice).

It is not uncommon to use branded watermarks as means of clear identification given the proliferation of internet use, in particular, increased bandwidth throughput, the ubiquitous use of imagery with the decline of line-code (indeed there’s much advice on the usage of watermarks on popular photography forums such as fredmiranda or dpreview). But given current conditions, one would have thought it reasonable to clearly demarcate boundaries of ownership, which to be fair many peers do! (branding 101). Though much imagery on the internet is public-domain, I do recognize some isn’t, however the recognition of distinction between the two isn’t entirely apparent on observation alone, nor do I feel website-owners are sufficiently informed in the finer details of the correctly sourcing of images, however awareness campaigns and the use of branded watermarks would help create or further reinforce that distinction. Photographic file Metadata/ EXIF data isn’t intuitively available to the technically ignorant (certainly this specialized knowledge isn’t as pervasive as language literacy). In light of that, it’s hard to fathom why anyone would choose not to tackle the underlying problem? Of awareness, changing entrenched mind-sets, putting the necessary systems place, with no conflicts of self-interest. Without that, inaction as well as actions helps precipitate the current climate i.e., it’s not what you do, but rather what you didn’t do, or choose not to do, which is why I see these image distributors as being culpable, as the situation such as it is, could be construed to be engineered by the very people who are profiteering from it, i.e., ‘it’s self-sustaining’ through inaction, that much is obvious, therefore acting in the interests of photographers is secondary (if that!) to preserving the status quo.

I assume as long as people allow themselves to be coerced into paying, the bully-boy tactics will not stop until industry reforms under new legislation with tighter regulation, and until that time these companies will continue to exploit the copyright act to support this abhorrent business-model. As it stands from their perspective, non-customers who pay are far better a (financial) proposition than non-customers who wouldn’t have licensed regardless, now what incentive would they have to change that?

None. This self-induced form of profiteering through intimidation has to stop as it’s setting a bad precedent for business practice as a cultural phenomenon, which has no place in civilized society.

-your friendly, einhander.