legal question re picture

[big soft moose]

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

not so - they can claim for infringement of copyright , which isnt a Scc action :bang:

if most of us have our copyright infringed go the small claims route of billing for the picture then pursuing non payment of invoice in SCC because we cant afford the up front legal fees of going another route.

Getty on the other hand can easily afford legal action - especially as they'll get most of their costs back at the end of the case - and will go for copyright infringement rather than a non payment action.

 

[big soft moose]

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.

You are right that a debt action of less than 5k would go to small claims, but Getty wont be pursuing a fixed debt the £700 is just a figure of what they'll accept not to go to court - if it goes tocourt it will be a straight suit for copyright infringement with damages awarded by the court which could be anything or nothing.

 

[Tioc]

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.

^^ this^^, if hes not checked the copyright situation himself or made sure his contract with the web designers is covering his back then , no one to blame but himself.

 

[Splog]

not so - they can claim for infringement of copyright , which isnt a Scc action :bang:

if most of us have our copyright infringed go the small claims route of billing for the picture then pursuing non payment of invoice in SCC because we cant afford the up front legal fees of going another route.

Getty on the other hand can easily afford legal action - especially as they'll get most of their costs back at the end of the case - and will go for copyright infringement rather than a non payment action.

Don't keep banging your head as it may hurt

What do think copyright infringement is? It's just using the image without permission. Getty have no legal authority whatsoever to impose fines or anything remotely like it.

They can ask though!

 

[big soft moose]

Don't keep banging your head as it may hurt

What do think copyright infringement is? It's just using the image without permission. Getty have no legal authority whatsoever to impose fines or anything remotely like it.

They can ask though!

Its not about imposing fines - its a lawsuit, they take him to court for copyright infringement (for using the image without permission) and the court finds in their favour and awards damages... and in all probability costs.

The point being that Getty are asking the court to determine that their copyright has been infringed and to award damages for it

this is different to you using one of my images without my permision then me sending you a bill and pursuing you in SCC for non payment of said bill. In SCC I wouldnt be seeking a judgement per se on whether my copyright had been infringed, just to enforce the payment of my invoice for the images use. Going that route the invoice would have to be reasonable for the usage so it would be more like 70 rather than 700

You cant pursue actual breach of copyright in the SCC, hence why getty wont go that route, but in a breach of copyright case there is no cap on what can be awarded as damages.

 

[boyfalldown]

You are right that a debt action of less than 5k would go to small claims, but Getty wont be pursuing a fixed debt the £700 is just a figure of what they'll accept not to go to court - if it goes tocourt it will be a straight suit for copyright infringement with damages awarded by the court which could be anything or nothing.

Where does it say it's a figure they will settle for? The op says 'they want £700' no mention if its an invoice or a settlement figure

If Getty have invoiced £700 or even suggested that as a figure then its hard to see how they could hope for more for breach of copyright especially as they place a clear value on that copyright. They could through lots of money and lawyers at it, and they may be able to afford to do that, but realistically assuming the defendant is an individual then they would be unlikely to ever recover those costs, awarded or not. Scc is the only likely route

 

[big soft moose]

Where does it say it's a figure they will settle for? The op says 'they want £700' no mention if its an invoice or a settlement figure

If Getty have invoiced £700 or even suggested that as a figure then its hard to see how they could hope for more for breach of copyright especially as they place a clear value on that copyright. They could through lots of money and lawyers at it, and they may be able to afford to do that, but realistically assuming the defendant is an individual then they would be unlikely to ever recover those costs, awarded or not. Scc is the only likely route

Did you read the other link ?

Its easy to be brave when its not our money thats at stake but you are talking out of your fundament - an action for copyright breach cannot be pursued in the SCC - fact

And for all we know the £700 might have been asked 'without predjudice' - in which case it wont even be mentioned in court.

and btw theres no such thing as a "defendant" in civil cases - just as theres no guilt or innocence - its just a case of which party the court finds for , and as to recovery of damages/costs if the OPs freind has any kind of income or asset this will be easy, even more so if the website is for a buisness

But whatever - you and splog are entitled to your opinions and i cant be bothered to debate them further , unless either of you is a lawyer I would suggest you think hard about giving advice that could result in someone losing their house or livelihood , but at the end of the day its a free country so think/say what you wish

 

[Bazza2764]

I have seen this type of claim on another website, this time the image used was one from the HSE website and they sent it to the owner of the site. the image is in all of their publications and used widely. Getty claimed images rights and wanted the same figure (£700). from what I can gather they have a team of people scouring the net and if they find what they think is their image they send a threatening email or letter. This guy wrote to the HSE and they confirmed they had paid the designer to design the image on their behalf.

 

[Splog]

Its not about imposing fines - its a lawsuit, they take him to court for copyright infringement (for using the image without permission) and the court finds in their favour and awards damages... and in all probability costs.

The point being that Getty are asking the court to determine that their copyright has been infringed and to award damages for it

this is different to you using one of my images without my permision then me sending you a bill and pursuing you in SCC for non payment of said bill. In SCC I wouldnt be seeking a judgement per se on whether my copyright had been infringed, just to enforce the payment of my invoice for the images use. Going that route the invoice would have to be reasonable for the usage so it would be more like 70 rather than 700

You cant pursue actual breach of copyright in the SCC, hence why getty wont go that route, but in a breach of copyright case there is no cap on what can be awarded as damages.

and incidentally if the OP wastes time then settles out of court as a case gets more likely, Getty could still sue for their legal costs incurred thus far.

I really can't be bothered to pull that apart as I'm using my phone.

The point is ..... What damages can they claim? They've lost income and that's all.

 

[boyfalldown]

Did you read the other link ?

Its easy to be brave when its not our money thats at stake but you are talking out of your fundament - an action for copyright breach cannot be pursued in the SCC - fact

And for all we know the £700 might have been asked 'without predjudice' - in which case it wont even be mentioned in court.

and btw theres no such thing as a "defendant" in civil cases - just as theres no guilt or innocence - its just a case of which party the court finds for , and as to recovery of damages/costs if the OPs freind has any kind of income or asset this will be easy, even more so if the website is for a buisness

But whatever - you and splog are entitled to your opinions and i cant be bothered to debate them further , unless either of you is a lawyer I would suggest you think hard about giving advice that could result in someone losing their house or livelihood , but at the end of the day its a free country so think/say what you wish

Yes I read it - did you manage to understand it

No defendant in civil cases? What complete carp. Slog and I were more then happy to have a good reasoned discussion, but you've managed to turn into nothing but insults again so why bother :bang:

Oh btw I did suggest the op say a lawyer so not sure wHoes money I being brAve with

 

[Laudrup]

'Getty extortion letter' gets a few interesting hits on google.

 

[HoppyUK]

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.

<snip>

Bit OT, but excellent post It's not only the best and most logical way, but the only way now that everything is digital and you can't control it.

 

[Musicman]

No defendant in civil cases? What complete carp.

quite.

Civil Procedure Rules changed terminology in 1998 so that the old term plaintiff has been replaced by claimant, but the claim is still made against a defendant

e.g. Dept of Justice Glossary of terms - Legal

County court judgment (CCJ)

A judgment of the county court that orders a defendant to pay a sum of money to the claimant. CCJs are recorded on the Register of County Court Judgments for six years and can affect a defendant&#8217;s ability to borrow money

 

[DemiLion]

... but you are talking out of your fundament - an action for copyright breach cannot be pursued in the SCC - fact

Boyfalldown has already dealt with the defendant part...

There's no such thing as the SCC in this country, it's the Small Claims Track heard in the County Court and it most certainly can hear copyright claims:

http://www.justice.gov.uk/guidance/...ules/civil/contents/parts/part27.htm#IDA2ZUIC

 

[Musicman]

Intellectual Property disputes are heard in the Patents County Court, not regular County Courts. The PCCs were established in 1990 to provide a cheaper alternative to High Court action for IP issues.

A streamlined procedure for the PPC was introduced last October, but, currently, there is no small claims track available in the Patents County Court.

The Patents County Court Guide Issued 12th May 2011 By authority of the Chancellor of the High Court

In the Patents County Court all claims are allocated to the multi-track. There is currently no small claims track or fast track

Justice Jackson, in is report last year, recommended that a small claims track be introduced into the PCC, along with renaming it the Intellectual Property Court.

http://uk.practicallaw.com/9-503-7485?source=relatedcontent

In May 2009, Lord Justice Jackson published an extensive preliminary report on civil litigation costs in the UK (see Legal update, Preliminary report on civil litigation costs published). The report considered, among other things, the cost burden faced by intellectual property (IP) litigants in the UK and outlined possible revisions to the Patents County Court (PCC). The Intellectual Property Court Users' Committee (IPCUC) made a number of initial proposals to reform the PCC which were referred to in Jackson LJ's preliminary report. Publication of the preliminary report marked the end of phase one of Jackson LJ's costs review and the launch of a public consultation.
In July 2009, the IPCUC published its final report on proposals for reform of the PCC, in time for submission to Jackson LJ as part of the second phase of his review of civil litigation costs (see Legal update, Final report on proposals to reform Patents County Court published). The IPCUC proposals included that:

...

There should be a small-claims track in the PCC for IP claims with a monetary value of less than £5,000, and a fast track for IP claims with a monetary value of between £5,000 and £25,000.

IP cases may also be brought in County Courts with a Chancery District Registry. There are a limited number of such courts.

http://nipclaw.wordpress.com/2011/0...ry-district-registry-or-patents-county-court/

Intellectual property cases other than those involving patents, registered designs, registered Community designs, semiconductor topographies or plant varieties cases may be issued out of:

• The Royal Courts of Justice;
• the Chancery District Registries at Manchester, Leeds, Liverpool, Newcastle, Birmingham, Bristol or Cardiff; or
• the Central London, Manchester, Leeds, Liverpool, Newcastle, Birmingham, Bristol or Cardiff County Courts.
• Intellectual property cases other than other than those involving patents, registered designs, registered Community designs, semiconductor topographies, plant varieties, trade marks or Community trade marks may also be issued out of the Caernarfon, Mold or Preston District Registries or the Caernarfon, Mold or Preston County Courts.

Again, there is no small claims track for such cases.

http://www.londonfreelance.org/fl/0803scc.html

Roy Mincoff, NUJ Legal Officer, explained: "Because of the specialist nature and potential complexity of copyright infringement cases, the Civil Procedure Rules in England and Wales have been amended so that all intellectual property claims including copyright matters, are now allocated to the "multi-track process". This means they have to be started in a County Court where there is a Chancery District Registry; in a Patents County Court; or in the Chancery Division of the High Court. Intellectual property matters are no longer assigned to the Small Claims track.

 

[simonblue]

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...

See where your coming from
Know what you mean,about the fee the original photographer will get payed,from Getty,but still cant help feeling for the photographer,i think he the one getting :bonk: here.

 

[DemiLion]

That sums things up rather neatly - thanks for the correction!

 

[Jonathan Shl]

I saw this on the net, now it's other people's opinions - well, here it is. There is some legal stuff that could be relevant including one case story:

http://www.webdesignerforum.co.uk/topic/4626-getty-images-copyright-infirngement-16k-demand/

Note the comments about how Getty allegedly treats its own photographers!

Edit:

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...

I couldn't agree more. It would be mildly surprising if any of it reached the photographer in question. Much as I wouldn't like my images ending up ripped off, I'm not sure I would want these bully-boys who use repeated threats without actual action to get the job done.

Edit 2: I also found this out and about on the internet. Again, it's someone's opinion but apparently they aren't good guys at all, just low-level security guard (human vicious dog) types http://www.webdesignerforum.co.uk/topic/4626-getty-images-copyright-infirngement-16k-demand/

 

[Musicman]

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

http://www.out-law.com/page-816

Web designer sued for using images without permission


A start-up on-line antiques business, Antiquesportfolio.com, has won a case in the UK High Court against its own web site designer which had taken photographs from an antiques encyclopaedia and used them on the web site without permission, in breach of copyright.

[read link for the rest of the story]

That's dated July 2000, BTW. None of this is new.

 

[Tringa]

An interesting thread with a number of tangential postings, but, as had been suggested by a few contributors, there is only, initially at least, one solution - get some legal advice.

This problem is not uncommon - there are loads of links on the 'net.

Dave

 

[bigrob]

Very interesting this thread.

People talk about the original photographer only getting his standard fee and then moaning about it. Why moan. The original photographer should of course only get his standard fee.

I am sure Getty spend a lot of money tracking down images that have been misappropriated. I am on Getty's side on this.

Whilst I feel sorry for the OP as far as I can see he didn't have in writing that images used were royalty free or had been paid for.

Pay up and pursue the website designers.

 

[jon ryan]

The only shots on my website were taken by me at commissioned shoots. Problem avoided.

 

[Byker28i]

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.

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.

Did you read the story in Post 26? A small firm ended up with huge costs when they went to court.

 

[boyfalldown]

Did you read the story in Post 26? A small firm ended up with huge costs when they went to court.

if you read around though there are a lot of stories on various forums and blogs about Getty's pursuit of these copyright letters. In many cases they appear to be relying on people being scared into paying by that one letter to avoid the potential costs.

The form of Getty's letter seems to suggest its for the recipient to prove they have an appropriate licence when it should be for them to prove you don't. It'd be difficult for them to do this, especially if they don't have exclusive rights to sell. What of you bought directly from the photographer (just as an example)

The last thing I'm doing BTW is defending any form of copyright infringment. And I'm well aware of the issues with various internet sources, all I'm saying is there may well be more then one side to this story

 

[Metal God]

I had this painter & decorator at my house recently. He told me he got done by Getty too. Cost him about £1,000.00 to make Getty go away. He pulled a pic (of a pot of paint) from Google Images to use on his site. He tried the 'Public Domain' stunt but failed dismally.

Thie following was recent press release from the Forum of Private Business:

Check you have the right to use the images on your website, small businesses warned

Small business owners are being urged to check the images they are using on their websites in order to guard against costly copyright claims.

The Forum of Private Business issued the warning after a noticeable increase in calls to its member helpline on the issue in recent months, with several businesses receiving letters demanding payment for unwittingly using copyrighted pictures.

Often, small businesses entrust web design companies to source and upload images to their websites, on the presumption that the design company will have secured permission to use them.

However, all too often this is not the case and liability for any copyright infringement lies with the small business, rather than the design company which developed the website.

As a result, the Forum is urging smaller businesses to check they are legally entitled to use the images on their websites in order to avoid potential claims from powerful copyright holders such as Getty Images, one of the world’s largest stock photography companies, which actively pursues copyright infringement involving its images.

Forum Chief Executive Phil Orford said: “We’ve received a number of calls recently from members who have been notified by Getty that they owe money because they are, however unwittingly, using unlicensed images on their websites.

“I think the digital age has blurred the boundaries of image copyright in many people’s minds and some business owners mistakenly think that because an image is freely available on the internet, it can be reused without permission.

“Additionally, many smaller businesses entrust web design companies with the whole process of registering and creating their website, and presume that their web design company will only use images they are entitled to use. However, this isn’t always the case, so I would urge business owners to check they are legally entitled to use each and every image on their websites.”

Mr Orford added: “Recent advancements in technology mean it is increasingly easy and cost-effective for copyright-holders to track the use of their images, so small businesses really need to be careful if they want to avoid receiving a letter through the post demanding money or threatening legal proceedings for copyright infringement.”

The Forum, which is a not-for-profit business support organisation for smaller companies, has issued the following advice to business owners:

Don’t use any old image you find on the internet. Google’s image search has made it quick and easy to find relevant images online, but this does not mean that all images you find are free to use. The copyright will almost always belong to the person who created the image, regardless of whether it’s accompanied by a copyright symbol.

Don’t think the image won’t be found. Even if no one but you visits your website, publishing an image without owning the copyright or buying the rights to publish it infringes on the rights of the person or company that owns the image, and modern software means its quick and easy for copyright-holders to track the use of an image.

Always ask your design company. If you’re working with a web design company to build and manage your website, you are responsible for ensuring they have licensed the images for your use. Ask them where they have sourced the images from and ask to see proof that they have purchased the appropriate rights – or buy them yourself. If no valid licenses exist, the liability may fall on the end client – your company.

Only use the image within its rights. When you buy from a stock photography website, you’re usually not buying an image itself but the right to use it in a certain way. For example, if you want to use an image commercially, i.e. in your logo, the license might not allow it, or you may have to pay more for what is known as an ‘extended license’.

The rights to an image may also only be available for a limited period of time, so business owners should check the terms and conditions attached to the image carefully when buying it. These are often known as ‘rights managed’ images and they only allow you to use the image in the way you state when you purchase it.

Free images are available under the Creative Commons licence scheme and are often used by bloggers. However, they are not always appropriate for use on business websites as many licenses do not allow for commercial use.

Instead, by buying images from reputable stock photography websites and using them in an acceptable way, business owners can prove that they bought the rights to use the image. Some companies even offer a legal guarantee to protect a business if it is accused of copyright infringement by the original artist.

 

[Musicman]

The form of Getty's letter seems to suggest its for the recipient to prove they have an appropriate licence when it should be for them to prove you don't.

Strictly speaking, if it comes to a civil case, then it rests on the balance of probability; they merely have to show that it is more probable than not that you have made an unauthorised use of a copyright work. The criminal standard of 'beyond reasonable doubt' does not apply in civil cases.

If you have no evidence of an appropriate licence, then it puts you in a very weak position to defend yourself from their claim.

What of you bought directly from the photographer (just as an example)

Then you should have evidence that the photographer has given you a licence, either by a previously written agreement or by his evidence to the court.

 

[boyfalldown]

I understand that, but my point is simply you cannot prove even balance of probability if you are not the only source of a licence.


The point I'm trying to make is there appears to be more then one side to this and it's a fair amount more complicated then is made out here

 

[Musicman]

I understand that, but my point is simply you cannot prove even balance of probability if you are not the only source of a licence.

So you're saying it's commonplace that a business could have licensed material, but never kept any record of the purchase order, purchase invoice and payment, nor received any acknowledgement from the rights holder or any one of their agents that the licence actually exists?

 

[boyfalldown]

So you're saying it's commonplace that a business could have licensed material, but never kept any record of the purchase order, purchase invoice and payment, nor received any acknowledgement from the rights holder or any one of their agents that the licence actually exists?

nope & where did I say anything like that. I'm saying if you don't have exclusive rights to sell a licence (or indeed any other product) then just because you didn't sell a legitimate licence doesn't mean it wasn't bought elsewhere. Its hard to see how without that exclusivity you can show that balance of probability. Without that exclusivity how can Getty (or any other commercial entity) have any right to see your commercial agreements with another company

See - its nothing like as simple as is being made out

 

[Chump]

I would say he is not directly responsable as the site was designed by a company, they must have supplied the images.

 

[Splog]

nope & where did I say anything like that. I'm saying if you don't have exclusive rights to sell a licence (or indeed any other product) then just because you didn't sell a legitimate licence doesn't mean it wasn't bought elsewhere. Its hard to see how without that exclusivity you can show that balance of probability. Without that exclusivity how can Getty (or any other commercial entity) have any right to see your commercial agreements with another company

See - its nothing like as simple as is being made out

Indeed!

 

[awp]

I would say he is not directly responsable as the site was designed by a company, they must have supplied the images.

The 'client' is always responsible for the content - and the designer for design - it's really very clear cut.

 

[rudolf hucker]

if you've got one of these on the go it's easy to determine when the owner acquired the domain, but is there a way to determine quickly, easily & accurately how long the website in question has been up & running ?

 

[awp]

You could try the way back machine - Google it - you could also try looking at the page source code - designers sometimes put the date the page was uploaded in a comment at the top of the code. Might work - might not.

 

[cherokee1111]

He's now written to Getty with screen shots of their 'licenced' image which is freely available on Photobucket, however, even I can see that photobucket takes no responsibility for images on their site so I think he's goosed, his exact words were Clucking Bell

I lickened it to taking the Virgin logo and sticking it on Photobucket doesn't mean it's free for anyone to use!
watch this space

 

[Laudrup]

Has Getty ever taken someone to court for this? Couldn't your friend take the picture down and just ignore Getty?

 

[HoppyUK]

Has Getty ever taken someone to court for this? Couldn't your friend take the picture down and just ignore Getty?

Friend or not, the guy has broken copyright law! Who's side are you on?

 

[Laudrup]

Friend or not, the guy has broken copyright law! Who's side are you on?

Not on Getty's anyway.

 

[Musicman]

He's now written to Getty with screen shots of their 'licenced' image which is freely available on Photobucket

Did he think that would make them feel better?

 

[cherokee1111]

Did he think that would make them feel better?

not sure I understand what your saying? he's showing facts nothing said about emotions