As reported here and elsewhere, a UK removal company was recently sued by Getty Images for unauthorised use of a single image on its website. The company settled out of court, agreeing to pay Getty £1,951. But that is only the tip of the iceberg. The actual costs of this dispute are shockingly higher.
Punishment by Google
A substantial hidden cost turns out to be the potential for damage to the reputation of the company, a small family-based firm for whom integrity is an irreplaceable asset in a competitive market. Their representative would only speak about the subject on condition that neither he nor the company were explicitly named here. Google is the reason. If any customer or potential client were to Google the company name, reports of a court case might raise eyebrows : could this company really be trusted? That alone might sway them toward a competitor.
Unfortunately the cat is out of the bag. Reports of the case have proliferated wildly around the web, not least because so many other individuals and companies face Getty's allegations of infringement and threats of legal action. Still, not wishing to add further punishment by creating more Google fallout we will not mention the company by name, although it is who you think it is. We will call the spokesman Mr X. It's worth it, to hear what he has to say as a paid-up "victim" of Getty's infringement pursuit.
Legal costs
Mr X has no wish to stifle discussion and no argument with reporting of the case, quite the opposite. He thinks people need to understand exactly how much trouble infringement of copyright can land them in. He says that the legal costs of achieving the settlement amounted to around £24,000, a debilitating amount for a small company that now "has us all working twice as hard just to make up the loss". Had they not had access to a friend who was a barrister, had their legal team not fought so hard to challenge Getty's escalating claim, or had the case actually gone to trial "it could easily have been twice as much, or more".
Mr X doesn't know why his company was singled out for legal proceedings, "we just drew the lucky ticket". So far they are the only known instance of Getty following through on threats of legal action. The ingredients of his case are typical, involving a freelance web designer commissioned to produce a new company site. Among the company's own photos there was a gap for an image to convey to customers the security of adequate insurance. The designer found a smiley image of a mother and daughter somewhere on the web that he believed it was OK to use. Barely larger than a postage stamp on screen, this stayed in the published version when it went live as "everybody just forgot about it".
A few months later Picscout found it and a letter from Getty's lawyers arrived requiring payment of some £1,700.
Wisdom of the web
The company says it removed the image immediately and turned to their web designer for help. He looked around the forums and found many others in a similar dilemma. He also found vast amounts of conflicting opinion and advice, anger at what many described as extortion, and acrimony directed at Getty's "scam". It seemed to many that having taken down the offending image, Getty were on thin ice with their threats, that their claims were inflated beyond all reason, that no court could possibly impose such damages for what many asserted were minor, accidental infringements, or images supplied by others and used in good faith.
Mr X ploughed through all the debate in the Federation of Small Business (FSB) forum among other places. He found recommendations for a company called Limeone, who some users had paid to write to Getty's lawyers and no more had been heard. Many believed Limeone to be offering a sound legal strategy that was defeating Getty's claims, an impression that Limeone allegedly encouraged. Mr X paid up £165, Limeone sent a letter, and he believed that was an end to the matter, until the summons arrived.
At that point Mr X finally sought the opinion of specialist copyright lawyer Micheners, who were blunt : it was an infringement, Getty had a cast-iron case in law, and the best and only sensible course was to pay up. Since the case was now headed for the High Court, that meant reaching a settlement with Getty's lawyers to deflect the costs and risks of losing the case.
Which is what happened. Because by then Getty had hired barristers and prepared the case, the original £1,700 claim had become 5 figures. How much exactly? Mr X is hazy, pleading post traumatic stress. He says the entire management of the company can hardly bear to talk about the subject, and his boss flatly refuses to discuss the episode. But at that point their costs began to spiral. They too had to hire a barrister in case negotiation failed and the case went to trial. And that is where £24,000 went, on the legal fees of both sides.
The bill
So this single photo cost the company around £26,000 in total, for a photo that Mr X thinks Getty would have licensed for about £160. Like most people he knew little about copyright beforehand. He says the main reason things worked out so disastrously was reliance on "bad advice" so copiously available wherever the legalities of the Getty demands were being discussed.
Mr X now has some hard-won wisdom to offer others who find themselves on the receiving end of a Getty demand : "pay it now, or urgently get specialist legal advice". Once Getty get to Court "there is no limit to what Getty want to do to you". As a global business with vast resources and huge losses due to infringement, Getty are out to make a point, and you will likely end up footing the bill.
Mr X also advises against any course of action that might risk infringement. "Do not put anything on your site but your own images. Do not use anything found on the internet unless you have cast-iron permission. You would be better off paying a professional photographer to take images for you, just so you know whose material it is".
What of Limeone? Mr X was advised a case could be mounted against them for their part in the saga, but it turns out that the assurances allegedly given were purely verbal, over the phone. There is nothing on paper at all, save the letter that was sent to Getty and proved as useful as a chocolate teapot.
There is also the possibility of suing the web designer, whose inclusion of the photo sparked the trouble. "That's a 'would you sue your grandma?' question" says Mr X loyally. "He's not a big company, he can't afford it, he's one of us, we like him and we like his work, he just made a mistake. So no, we just want to put this down to experience and move on."
The 150-page FSB forum "Getty Corbis" topic wherein these matters have been discussed at such erroneous length, is now restricted to FSB members only. Wisely, the moderator has finally curtailed the mass public improvisation of copyright law, and now states in large bold type : "You are strongly advised to seek your own qualified legal advice on this matter." Better late than never, then, except for Mr X.
NB: Comments that mention the company by name will be deleted.
Some really bad advice there. If you publish, you are responsible, whether or not a web designer supplied the infringing copy. And Ltd co protections do not extend to deliberate attempts to avoid the law. Directors can be held personally liable.
©A admin
Yes I agree. It's called entrapment. I don't tink that Getty is properly protecting it's clients assets. Every image offered should have a watermark or be programmed as to not allow a "copy and paste' or "save as". Really people, it isn't that hard. I would say that 90% of internet users are not aware of the digital copyright laws as in these examples. I consider myself to be a very smart business owner, but had NO IDEA of such a thing. A simple notification to remove the image would have surely sufficed. It's not like the image was unique, but a dime a dozen - so why would I steal it? Really?? I think these internet image service providers should be fined for entrapment because they are doing NOTHING to prevent this from happening when they are the ones complaining it is a problem!
Ignore all Getty images crappy letters. If you have cease and desisted you are fine. If it was genuine and carry out by a third party developer you are not responsible. If your company is LTD let Getty take you to court rack up the legal bills and then simply dissolve your company change a few details over and open a new one...... Give the bullies the finger!!!!!!
'I'm facing the same issue as Mr. X except I haven't taken any legal action against Getty. This is going to ruin my small company.'
Can you be more specific? Why would you take legal action against Getty?
How can using an image you have not paid for ruin your small company? Was your company built on taking something for free?
I'm facing the same issue as Mr. X except I haven't taken any legal action against Getty. This is going to ruin my small company.
Well. Nearly all the £26,000 was lawyer's bills. It's what happens if you infringe against a wealthy corporate, as opposed to an individual for whom the costs of pursuing infringement are often insurmountable even if they might ultimately recover them. In other words, the imbalance of power is reversed where a photographer has to sue a large company for their infringing behaviour. Copyright is very much a rich man's law, like defamation. And nobody would like to see that addressed more than photographers themselves, which is why the costs and difficulty of dealing with infringement featured large in submissions to the Gowers report of 2006 and David Lammy's review of 2008. In the end Government has chosen not to address the issue except by granting even greater powers to corporates and proving it listens only to lobbyists with money.
Your second point, though, is really rather groundless. It is safe to assume that any photograph of the last 100 years or so, found on the internet or elsewhere, is somone's copyright. Any use without permission is, of course, infringement. The law is quite clear about this, and if nothing else about copyright is understood by users, this at least is clear and simple : ask before using.
Again, photographers have been lobbying for mandatory attribution and a duty of care toward metadata which would simplify tracing the rights holder and negotiating a license. We again find ourselves opposed by the corporate publishing lobby, who consider this costly and onerous.
Copyright has been perverted from a mechanism of fair reward and a means to ensure creators can eat, into an instrument of corporate monopoly. The public now sees infringement as a Robin Hood rebellion. The Digital Economy Bill is now set to make all this a great deal worse.
©A admin
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.
I'm left wondering what the person who created the image saw of all this money. Anything? Or did it just go to Getty and the attorneys? Getty and in particular the microstock sites it has snapped up show little, if any, concern for protecting the rights of the photographers creating the work they now license for peanuts.
Yes D, some or all of those things together with experience should qualify you to develop a website.... And minimally an HND is really the basic that should be required of anyone offering their services as a professional web designer... Or of any other professional creative...
"It is true that paper trails and litigation may not be known by the moonlighter. But it by no means makes them any less qualified than your self. Please turn you anger of lack of busienss to something else than people trying to make a living."
How bizarre...
Let's just follow the logic of what's written here... According to you D; it's true that moonlighter's might not know the basics of the job to the extent they may place themselves, or more likely their client, in the position where they face legal bills in the £25K+ region... BUT that fact doesn't make them any less qualified to take on the work than someone who is properly trained and does know how to manage these risks and doesn't play fast-and-loose with their client's interests or put them at that risk!!
What's more (again; according to what you've written) those in the latter category (i.e. legitimate professionals) should turn their anger elsewhere than those who are generating a price advantage through evading the overheads associated with doing the job properly....
I suspect that to most people of reason this twisted logic will leap off the page as just that... This is as absurd as suggesting that 14-year-old joyriders cruising the streets at night are no less qualified to drive than legitimate motorists! Perhaps we should all get off their backs too?
Proper, legitimate, qualifications are the starting point for anyone wishing to enter a creative profession. Coupled to experience they warrant an at least baseline level of knowledge of the matters that are not always aparent from a superficial study of the subject in question. They are certainly no guarantee of vast expertise; but they do at least offer some assurance that the holder has at least enough knowledge of the subject not to be rendered dangerous through ignorance...
Which is just one reason why my own company insists on a minimum HNC from even the most Junior trainee!
I'm afraid most (if not all) those so-called "professional web designers" who landed themselves in this mess have not the slightest whisper of a grain of an excuse. Failing to properly assess and clear copyright on a piece of IP is such a fundamental error that to make it is quite simply not competent!Likewise failing to read or understand inadequate license conditions...
Matt Quinn,
TFGtv.com, Corporate Vision for SMALL Businesses!
What qualifies anyone working professionally in any sphere is expertise. That means knowing the law and legal pitfalls as well as how to reliably and safely service clients' requirements. This applies to any business, all of which are regulated by all sorts of laws. Ask you local corner shop.
With web design, photography and most creative industries formal qualifications are not mandatory, as they are for being a gas fitter, pilot or brain surgeon, where "trying to make a living" in these areas without adequate knowledge will kill people. But a web designer or photographer who lacks a thorough understanding of copyright law (and also privacy law, contract law, tax law etc.) are a liability to themselves and to their clients.
As for designers who find themselves in trouble having sourced images from freestock or some of the dodgier microstock libraries, or included in free templates, common sense suggests you get what you pay for. Anyone can upload anything, whether their own work or stolen is not vetted by the library, and the T&C generally make it absolutely clear that using any image is at your own risk. There's nothing "professional" about any designer who's ignorant or negligent enough to ignore all that. Sometimes they'll get away with it, but if they don't it is nobody else's fault.
There is a rarer instance, where a license has been legitimately obtained elsewhere than Getty. Of course Getty demands are then invalid. If the designer didn't keep a licensing papertrail, surely they at least recorded the cost of the license in their accounts. By law, they're required to keep their accounts, invoices and receipts for 6 years. From these records they will be able to discover when they made the offending site so should be able to see where the image came from. Unless you're telling me that these "professionals" evade tax and don't keep accounts, as well as stealing other peoples' work?
©A admin
Post new comment