legal question re picture

[Musicman]

My understanding is breech of copyright is theft of intellectual property , no ?

Not in English law.

It's a civil wrong. In certain cases it may be a criminal act, but not theft as defined by sections 1 to 5 of the Theft Act 1968.

http://www.legislation.gov.uk/ukpga/1968/60/crossheading/definition-of-theft

1 Basic definition of theft.

(1)A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

The wording is carefully constructed.

By using an image without permission, you are not permanently depriving the rights holder of the use of that image. The rights holder can still make use the image while the other party is making [mis-] use of it. If you wish to argue that you are deprived of the potential income due to you by the misuse of the image, this opens up a series of unwelcome consequences.

As I have posted previously on this topic:

"Essentially, in principle, you're advocating the re-definition of causing any losses to another party into criminal acts of theft. i.e. if you do something that causes me loss of income. Or, more broadly, by implication from your hypothesis, loss of potential income, then you are committing theft.

Traditionally, these areas are dealt with by tort and other areas of civil law; restitution is delivered in the form of damages.

So, suppose someone were to park their car across the entrance to your garage - you are thus temporarily deprived of the use your car and cannot make it to an event where you are to make money taking photographs. You have suffered a financial loss, or at best a loss of potential income. Under the proposed update to the law, they have committed theft.

You can extend this to myriad other examples in daily life where you may find yourself out of pocket, be temporarily deprived of the use of something, or missing out on income that you may have otherwise expected to receive. A shop fails to deliver a television at the promised hour when you have take time off work to wait in for them. A train is late, causing you to miss a valuable opportunity?

The logical implication of your suggestion is that these should be classed as theft.

While you may suffer a loss, financial or otherwise, they are not acts of theft in law for good reason."

 

[cjay]

I disagree, he's paid a website company (I assume) to create the site, they are responsibl for the original content, the op's friend didint put up the picture the design company did it. They should pay

Unfortunately it isn't - he employed the contractor to do the work. He is the owner of the work (the website). He is the point of contact for Getty and they will get their money. The only recourse the website owner has is in the limited liability section of the contract he signed and claiming the £700 from that.

C

 

[TriggerHappy]

Not in English law.

It's a civil wrong. In certain cases it may be a criminal act, but not theft as defined by sections 1 to 5 of the Theft Act 1968.

http://www.legislation.gov.uk/ukpga/1968/60/crossheading/definition-of-theft



The wording is carefully constructed.

By using an image without permission, you are not permanently depriving the rights holder of the use of that image. The rights holder can still make use the image while the other party is making [mis-] use of it. If you wish to argue that you are deprived of the potential income due to you by the misuse of the image, this opens up a series of unwelcome consequences.

As I have posted previously on this topic:

"Essentially, in principle, you're advocating the re-definition of causing any losses to another party into criminal acts of theft. i.e. if you do something that causes me loss of income. Or, more broadly, by implication from your hypothesis, loss of potential income, then you are committing theft.

Traditionally, these areas are dealt with by tort and other areas of civil law; restitution is delivered in the form of damages.

So, suppose someone were to park their car across the entrance to your garage - you are thus temporarily deprived of the use your car and cannot make it to an event where you are to make money taking photographs. You have suffered a financial loss, or at best a loss of potential income. Under the proposed update to the law, they have committed theft.

You can extend this to myriad other examples in daily life where you may find yourself out of pocket, be temporarily deprived of the use of something, or missing out on income that you may have otherwise expected to receive. A shop fails to deliver a television at the promised hour when you have take time off work to wait in for them. A train is late, causing you to miss a valuable opportunity?

The logical implication of your suggestion is that these should be classed as theft.

While you may suffer a loss, financial or otherwise, they are not acts of theft in law for good reason."

Great post, thanks for clarifying on my very basic understanding!

 

[Bernie174]

Hoppy
Demi's half right about what I mean. There is no 'Guilty', it's a finding for or against the plaintiff, it's not a criminal hearing.
The part which he didn't answer, and directly addressed your point, is reasonableness.
In a civil action, the principle of 'was it reasonable to suppose' or 'was it reasonable to believe' applies more than it would in a criminal court.
So the question isn't, as you suppose as simple as 'the photos are on the site, hang the guilty bastool', it's would a reasonable person, having had a site built by someone else, who is professional have any reason to suppose that the photos on it shouldn't be there?
The next question, is would Getty be reasonable, given the photo was removed after it was pointed out it shouldn't have been there, in the circumstances to expect damages or compensation?
The odds are fairly against a court deciding so, which means it would cost Getty much more than they might, at a long shot get.
Even if Getty 'won' any civil action, the mitigation, in that the site owner had no reason to suppose he was breaking copyright would be taken into account, meaning that its highly likely that punitive damages if any, were awarded.

On the subject of theft, it most certainly is not.
Theft is the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it.

Each word of that is heavily defined in the theft act, and reinforced by cases stated. But put in simple terms,
There is no dishonest intent. There is no property to appropriate. There is therefore no theft.

 

[Musicman]

As mentioned previously, it is then up to the web site owner to recover damages from the web developer, the details of which would depend upon the terms of the contract between them.

A wise web developer would have professional indemnity insurance against such a circumstance.

 

[big soft moose]

.

A wise web developer would have professional indemnity insurance against such a circumstance.

true , but a wise web developer would also check the copyright of all the pictures her used so this circumstance wouldnt arise

 

[DemiLion]

but just because a picture is in the public domain with no watermark or copyright info doesnt automatically mean that its free to use - that description fits about 90% of the images on this site for a start.

every picture is copyright to someone (usually the tog who took it) and they are only free to use if it is expressly stated that they are

It's called an Orphan Work and the Hargreaves Review centring on the use of them is making a whole raft of industries jittery at the moment.

 

[swanseamale47]

Unfortunately it isn't - he employed the contractor to do the work. He is the owner of the work (the website). He is the point of contact for Getty and they will get their money. The only recourse the website owner has is in the limited liability section of the contract he signed and claiming the £700 from that.

C

He bought the site and image from the web company, if they sold him an image they didn't have the rights to then they have some liability.

 

[Musicman]

true , but a wise web developer would also check the copyright of all the pictures her used so this circumstance wouldnt arise

Well, indeed. Which is what I do when I'm designing web sites, though I'm largely out of that game these days.

 

[big soft moose]

He bought the site and image from the web company, if they sold him an image they didn't have the rights to then they have some liability.

yeah but they have the liability to him - he is still the one publishing the image so he is the one liable to getty

Theres not much doubt he can get the money back later from the web designer (assuming they are still trading of course)

 

[KIPAX]

Theres not much doubt he can get the money back later from the web designer

I would like to see that story... On paper he will but in reality I jsut can't see it happening.

 

[big soft moose]

I would like to see that story... On paper he will but in reality I jsut can't see it happening.

I would have thought that the threat of court action and bad publicity would persuade most web designers to settle up PDQ - if you were a web designer would you want it widely known that you caused one of your clients to get sued for copyright violation ?

 

[Faldrax]

I find it interesting that the majority of posters here take the view that it is the owner of the website rather than the developer of the website that is legally liable.

If this is the case (and I am not suggesting it is not), does this mean that sites such as Flickr (where individual posters could be considered 'developers' - they certainly are not the ultimate owners of the site) are also liable for any content (regardless of any disclaimer people may notionaly accept when posting to the site)?

 

[flossie]

I'd like to think the libraries that represent my work would pursue infringements as effectively as Getty. We have to stop this copyright theft.

Oh dear.

Is that the sound of Deja-Vu?

Remember what happened to EMI, Sony, MGM, etc etc etc who all said "We have to stop this copyright theft."

The only ones who are not a shadow of their former selves less than 10 years later are the ones who looked outside their traditional methods of making money.

Just a little thought...

 

[big soft moose]

I find it interesting that the majority of posters here take the view that it is the owner of the website rather than the developer of the website that is legally liable.

If this is the case (and I am not suggesting it is not), does this mean that sites such as Flickr (where individual posters could be considered 'developers' - they certainly are not the ultimate owners of the site) are also liable for any content (regardless of any disclaimer people may notionaly accept when posting to the site)?

yeah but the disclaimer is what counts - you accept it when you sign up and thus indemnify the owners - If the OP had a contract with the web developer which clearly stated that the developer remaine liable for any breaches of copyright then he'd be fine - but by the sounds of it he doesnt

 

[simonblue]

I'd like to think the libraries that represent my work would pursue infringements as effectively as Getty. We have to stop this copyright theft.

Your right,no dout the design company got paid

 

[simonblue]

Oh dear.

Is that the sound of Deja-Vu?

Remember what happened to EMI, Sony, MGM, etc etc etc who all said "We have to stop this copyright theft."

The only ones who are not a shadow of their former selves less than 10 years later are the ones who looked outside their traditional methods of making money.

Just a little thought...

So photographers should not get paid for any work they do :nono:

ps I take it you get paid for the work you do.

 

[Terrywoodenpic]

If you contract someone to build a site for you, they have some ultimate responsibility for their work.

It shows the need for a well written contract.

 

[Musicman]

I find it interesting that the majority of posters here take the view that it is the owner of the website rather than the developer of the website that is legally liable.

Well, that may be subject to contractual details between the developer and the company operating the site, but the established principle is that that is the case. The infringer is the one using the image, i.e. the business. They may have a defence if they can show that they were innocent parties (i.e. that they were wilfully duped by a web developer who provided them with false documentation of licences to use the images, etc.) but that is a hurdle they would have to overcome in court. Mere ignorance is not a defence. Furthermore, a defence will only mitigate the claim against them, not cause it to cease to exist.

If this is the case (and I am not suggesting it is not), does this mean that sites such as Flickr (where individual posters could be considered 'developers' - they certainly are not the ultimate owners of the site) are also liable for any content (regardless of any disclaimer people may notionaly accept when posting to the site)?

There's a significant difference here. The status of Flickr and other similar sites relies upon what is (in US parlance) 'common carrier' status. In a similar way, British Telecom is not held liable for slanders uttered over its phone lines, nor the Royal Mail for libels sent through the post. They have no reasonable control over the contents of their respective services and, consequently, are not held liable for them.

A company running its own web site to promote its business may be more reasonably expected to be in control of the content therein.

 

[Splog]

£700 for the use of a pic on a web site sounds ottp to me! To the op ... Let them take you to court...... £70 sounds more like reality.

 

[ziggy©]

If I was in your situation I would challenge it in court. It is the same as unknowingly buying a stolen car. Chances are you will loose the car but I doubt you will be prosecuted for the theft of the car. Provided Ofcourse you can prove that you didn't know it was stolen when you bought it.

 

[DemiLion]

You've got £35-40k spare to chuck away then have you?

 

[ziggy©]

You've got £35-40k spare to chuck away then have you?

Getty will pay for the legal costs once I win the case

My advise to the OP is speak to a lawyer. He will be able to advice you on where you stand and whether it is worth challenging it.

 

[MWHCVT]

Getty will pay for the legal costs once I win the case

My advise to the OP is speak to a lawyer. He will be able to advice you on where you stand and whether it is worth challenging it.

I don't think there is any challenging it, though I would still be talking to a lawyer to take action against the web designer for there gross negligence

Matt
MWHCVT

 

[itsdavedotnet]

£700 for the use of a pic on a web site sounds ottp to me! To the op ... Let them take you to court...... £70 sounds more like reality.

yes but there would be a punitive element to the sought damages too, otherwise nobody would license images, and just pay the license fee if they got caught...


it's a cut and dry case, you infringed getty's copyright, so pay up, learn from it, and examine your contract with your web guy and who supplied the image to see if he is liable. My guess is that as long as he has a well written contract, he won't be.

 

[awp]

Let them take you to court.

SERIOUSLY bad advice

 

[flossie]

So photographers should not get paid for any work they do :nono:

ps I take it you get paid for the work you do.

Not at all - you are missing my point completely. Just saying that the 20th century reaction of "reach for the lawyers" didn't get the record & film companies anywhere once digital copying became commonplace, however much they tried - in fact, it killed those that did that and couldn't adapt.


ps. yes I do - I get paid by the job, but if my work is shown again and again in multiple formats and countries, I don't get paid again. 30 years ago, in a different world, I would have been, but the cost of paying everyone involved residuals each time are such that it simply wouldn't happen - get one showing and that's the end of it. So I'm better off getting paid - very well - just the once, and letting people do what they will with the product and move on to the next job, than demanding a fee for every use of my work - which would kill it, rather than promote its use, and hence my profile and so more work, etc etc etc...

The risk is also transfered from me to my clients (unlike, say, the Getty model) - something could bomb, I still get paid. Conversly, something does well, I still get paid, they make lots of money, they commission me to do more. Everyone is happy.


p.p.s.
Does anyone actually think the £700 punative fee Getty are charging will ever reach the original photographer... they'll just get their standard small amount, the only real winners will, of course, be lawyers... this is just the "artistic rights" version of no-win, no-fee scams...

 

[KIPAX]

I think most people would have sympathy for the guy who owns the website.. yes he is in the wrong and yes it is him who will ahve to pay... his crime isnt stealing copyrighted pictures.. his crime is at best ignorance and trusting the design company who told him it was alright...

35 posts later and nobody agrees? what a hard hearted lot you are

 

[DemiLion]

35 posts later and nobody agrees? what a hard hearted lot you are

I agree with you completely (just don't tell anyone that I'm a softy really! )

 

[Musicman]

He has my sympathy and I have none for the web designer, from whom he should seek to recover his costs.

There's a difference between that and that suggesting he isn't responsible in law for the content of his site, though.

 

[big soft moose]

£700 for the use of a pic on a web site sounds ottp to me! To the op ... Let them take you to court...... £70 sounds more like reality.

even if you are right about the £70 thats terrible advice - if it goes to court and the court finds for getty (which they will as the infringement is open and shut) he might only be ordered to pay the £70.......... plus getty's costs which will be in four figures, or maybe five and of course his own legal costs.

it would be the very definition of a pyhric victory - instead of paying over 700 quid he'd only be paying £70 in damages - but then have about £20k in legal bills.

 

[boyfalldown]

it would be the very definition of a pyhric victory - instead of paying over 700 quid he'd only be paying £70 in damages - but then have about £20k in legal bills.

seriously, for a small claims court?. Don't talk daft, except for the court fees, which would be £60 if they used money claim online then each side would be expected to bear their own costs.

I do agree letting it get to court would be silly though

 

[KIPAX]

seriously, for a small claims court?. Don't talk daft, except for the court fees, which would be £60 if they used money claim online

getty? I am only guessing here but very much doubt they would use either a small claims court or money claim online... almost deffo not the latter

 

[Splog]

even if you are right about the £70 thats terrible advice - if it goes to court and the court finds for getty (which they will as the infringement is open and shut) he might only be ordered to pay the £70.......... plus getty's costs which will be in four figures, or maybe five and of course his own legal costs.

it would be the very definition of a pyhric victory - instead of paying over 700 quid he'd only be paying £70 in damages - but then have about £20k in legal bills.

Perhaps! Are you suggesting that Getty would be prepared to risk £20k to claim back £700 ? If he got even close to actually going to court he could settle out of court. Its a gamble either way.

 

[KIPAX]

Perhaps! Are you suggesting that Getty would be prepared to risk £20k to claim back £700 ? If he got even close to actually going to court he could settle out of court. Its a gamble either way.

there would be no risk.. in fact nobody would take it on for the defence as everyone would know its a lost cause..

 

[boyfalldown]

getty? I am only guessing here but very much doubt they would use either a small claims court or money claim online... almost deffo not the latter

why - its for at most £700. Which is well within the remit of the small claims court (money claims online is only a way of starting small claims online really, and issueing the first summons) so what other route could they use?

 

[big soft moose]

Thers no way Getty would use a small claims court - if it was just some tog claiming the money you'd be right , especially as most of us dont have the cash for a court action and thus have to go the small claims court route if at all - but Getty are a huge company with major resources and a dedicated legal team , and I would hazard a guess that its not about the money per se as about the principal that no one violates their copyright without consequences

as such they will just sue for breach of copyright - not for recovery of a specific ammount - which is why it wouldnt be a small claims action, and the court will award damages which could be anywhere for £1 to thousands. They will almost certainly find for getty because the copyright infringement is clear , and the OPs freind has implicityly admitted it by removing the image, also if it goes to court the Court is likely to award costs against the OPs freind because they would hold that he had acted unreasonably in forcing the action to court when he has a clear liablity

look at that link originally posted higher up about the removals firm sued by getty in that one getty started out asking for a £1700 and the total cost including legal bills wound up totalling 26k.

The best advice for the OPs mate is talk to a lawyer - dont take legal advice from a bunch of guys on a forum, and assuming the lawyer does confirm that the case is pretty damn solid it would be wise to settle asap , though it might be worth offering less than the £700 without predjudice, but again not without taking legal advice first.

 

[boyfalldown]

No I agree with you best to see a lawyer- but I've yet to hear what route other then small claims anyone could go for a £700 debt. A judge decides which track (small claims, fast track or multi track) a claim ends up on not the claimant ( although they can influence). A claim under £5k would go onto the small claims track unless it were very unusual. Why do you think it'd go anywhere but small claims just cause it's Getty.

 

[Musicman]

No I agree with you best to see a lawyer- but I've yet to hear what route other then small claims anyone could go for a £700 debt

because it's not a claim for debt, but a suit for copyright infringement, which can't be handled via small claims.

 

[Splog]

because it's not a claim for debt, but a suit for copyright infringement, which can't be handled via small claims.

They can only claim for financial loss..... Why would they use any other means than the scc.