Sued by Getty Images (??!!??)

Guys, a question:

my (very small) company has recieved a settlement demand from Getty Images for using a tiny image on our website. We have since removed the images, but they insist we need to pay them HK$12,000. My question is should I fight this? Should I pay? Does anyone know a good solicitor that can advise me? I really dont think it fair what they are doing, and I think what they are doing stinks! Thanks for any help. Very much needed.


(I am based in Hong Kong)

That's interesting. From the letter they sent you, where are they based? Not Hong Kong I presume?


Under section 97 of the Copyright, Designs and patents act 1988 Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy. [This is just something for you to think about.]

I use to work for Getty in the UK and I see this kind of case a lot.

First of all, Getty has to prove that the image you used is 100% theirs, if they have proved this you can still fight this but only against the payment of $12,000. You can easily reduce the payment if you fight your argument. I have listed a few things you need to ask yourself and them to reduce the payment.

- Where is the image taken from? was it brought, given or taken?

- How small of a company are you? If you are an extremely small company you say you are then your exposure is not as big as a corporate company then the image would not be seen on a large scale as others. Meaning is the value of image should be lower.

- The size of the image? and where can the image be found? again this affects the value of the image.

- When did Getty got in touch with you? and how you? phone, email? This will tell you if Getty went by the book to let you know of the copyright infringement. They should give you prior warning before actually suing.


Hope this helps. Feel free to private message if you need more info or help


Copyright-Guy

We would require more details to provide you with advice on your position and the way forward. The costs for the consultation is at a concessionary rate of HK$2,800. Please contact Mr. Michael Titus (tel : 2526-1767).


Weir & Associates

Solicitors & Notaries

16th Floor Tak Shing House

Theatre Lane

20 Des Voeux Road Central

Hong Kong

Tel : 2526-1767

Fax : 2868-3568

email : weirlaw@hongkonglaw.com

www.HongKongLaw.com/weirlaw

However, send them a note (same medium as they sent you) stating that you were unaware that it was theirs (thanking them for letting you know) and state you removed it immediately on hearing so. They are unlikely to do anything. Play their bluff if they continue.

the company i work for also got a letter of demand in lieu of legal proceedings from Getty. however, from us they were demanding approx HKD70k and change. We did exactly what drm888 and PizzaAce have said. We removed all the said pics, wrote a letter advising them of the same and thanking them for bring it to our attention and that such images will now no longer be used. This was maybe around Jan this year. Got a follow letter of demand, maybe around April. And then nothing more.


I say ignore them. Either they put up with the proceedings, or shut up.

If you took the image from Getty website to use on your website without paying for it, as it appears you did, you knowingly stole their property and should pay for it. Period.

You can further your deceit by ignoring them or telling them to get lost as many have told you to do here if you wish. It was even suggested by PizzaAce that you can simply say that they doctored the evidence because you did not take their images and are not on your website as you show present to the court. Oh, good idea Einstein. Like a judge is going to believe Getty images doctored images to look like images you had on your website so they could sue you. Of course they have a snapshot of your website when their image was on it, and it is easy to show the image is theirs. no two images are the same and that is easily proved.

You stole. Apologize, say you won't do it again and the will probably drop it.

Thanks Everyone, this has been useful advice. At present I decided to engage Getty and to negotiate a lower settlement. I m waiting to hear back from them.

Just to let you know, since I asked around: Getty have offices (in wanchai) and bank accounts here in HK, with lawyers who have nothing better to do than to prosecute little guys. While I think this stinks, I have to face reality that if I ignore them, it will come back at some stage. I honestly think this may happen as this tactic seems to be an important revenue stream for Getty & I cannot afford to have that happen.

Lesson learned, never right click an image on the internet (even if it says "royalty-free") and use it to decorate your website. You might recieve a letter out of the blue like I did. Arrghh. . Thanks . . .

DSL-


I think engaging Getty in negotiating a settle is the smart thing to do. I am a photographer and maybe able to shed a little light on your situation. Besides representing their own collection of images Getty also represents the images of a large number of photographers and agencies around the world. Licensing an image is similar to going to the video store renting a movie for a day or a week. The longer you borrow the movie for the more you pay. In your case, whether you realized it or not at the time, you stole the image to be used commercially on your website. And unfortunately for you, they caught you.


Now you're getting a bill for probably 2-3 times the rate they would have charged you had you called them before you used the image. Its a usage fee plus a penalty fee. They are protecting the rights of the photographers who own the copyright of the images and you're in a difficult bargaining position as you did caught. If I were you, I'd call them up apologize profusely then try to work out a situation where you can pay less and perhaps even become a client - then you can have cool pics on your website regularly without the 'infringement' price tag. It'd be a win-win for both parties - as you'd have the images you'd like to use and they get a client out of this. Hopefully it all works out.


Paul

www.asiaselects.com



PS. Here's the definition of royalty free from wikipedia for your reference

Royalty Free refers to a type of contract between two entities (the licensor and licensee), that is employed when licensing the rights to use content, such as photographs. The term Royalty Free means that once the content is licensed under a set of guidelines, the licensee is normally free to use it in perpetuity without paying additional royalty charges.


The Royalty Free license contrasts with the rights-managed license, wherein the buyer usually receives the right to use the content in very specific ways, with restrictions placed on things like period of time used, geographic region, industry, size published, etc. Rights Managed is so called because the licensor is specifically managing the publishing rights for the content.


For an image that has been licensed as Royalty Free, the licensor is unable to provide a history of usage to a prospective licensee. This may negatively affect the licensee, because they cannot be assured specific content is not being used in a certain geographical region by a competitor, for example. There are examples of the same Royalty Free content being used in large promotional advertising campaigns by competitors.


The concept of Royalty Free comes from copyright, a statute that allows authors and publishers of works to be the sole arbiter of the exploitation of that work, and to set fees associated with that work. The economic incentives afforded by copyright give artists one way to make a living through their creative works.


Typically, the royalty charged for content under a Royalty Free license is based on the physical attributes of the content. For example, the larger pixel size of a digital image, the larger the fee, since the licensee gains more benefit from an image with more resolution.


Royalty Free does not mean a user is free to take and use whatever content they find available to them. It only refers to a specific licensing contract between two entities. The licensor, usually the content creator, always retains all copyright to the content, including the ability to distribute it, or allow redistribution. Each licensing contract is different. Some may allow reselling of items that include that content, such as a t-shirt or calendar with an image, and others do not. The terms of the license should be researched, to be assured if the license includes the rights desired by the license.

A colleague of mine went through the same thing last year with Getty Images. Was a farce from the beginning. They claimed copyright of 4 images on their site, however my colleague sourced 2 of them from Google Images and 2 were photos taken in their own studio!


As a matter of caution they immediately took down the images they sourced from Google and informed Google of the possible infringement. Google investigated and confirmed they were not images from Getty and that they were free to use.


My colleague then put these back up on site and threatened Getty with legal action and that he would report them to the police for extortion as they owned none of the images claimed. Getty still maintained that his own images were theirs! They backed down on the Google ones, obviously knowing they'd get flayed in court. They continued with their demands so my friend countered directly at their HK office. With legal documents served their HK office apologised but the demands continued to come from the US! So my colleague began legal action there also.


Getty themselves have got themselves into so much trouble with these demands, so far they have not been able to sue anyone in the USA on infringement and have recently just lost a lawsuit in Germany. If they were able to successfully prosecute in HK it'd probably be a worldwide first.


Now although I agree with much of what Paul says above I do not agree that you should just "pay up" for possible infringement. It is possible that companies and individuals have sourced images from free sources such as Google and if that is the case then Getty should go for Google not the person who has downloaded in good faith. They will not do this as they are at heart cowards who will only go for easy prey.

Just a quick comment re Google images ... just because you pull from there does not mean an image is not copyrighted... see Google's terms and conditions...

Ed, see Evildeeds post...Google apparently say that "they are free to use"...thats a consent from Google to use them. No need to see Googles terms and conditions..once they give that consent, then its fine.


Seems like Getty is trying to scare ppl to pay them a sort of "licence" fee and for images that they dont even have copyright to.

See - which begs the question... why doesnt Getty sue google for pulling the images to their site....



See full size image


333 x 292 - 27k - jpg - www.puppythrill.com/image_blog/fat_dog.jpg


Image may be subject to copyright.



http://images.google.co.id/imgres?imgurl=http://www.puppythrill.com/image_blog/fat_dog.jpg&imgrefurl=http://rebeccaskloot.blogspot.com/&usg=__jXmuTN5dLVZT8Hi7DWmtCoDUaJ0=&h=292&w=333&sz=27&hl=en&start=6&um=1&tbnid=xk9vLKXsVmZb6M:&tbnh=104&tbnw=119&prev=/images%3Fq%3Ddog%26hl%3Den%26sa%3DN%26um%3D1

You should apologize to Getty for stealing their image, and negotiate. More importantly, why do you think that "what they are doing stinks"? They are in the business of selling photos. If everyone did what you did and stole their images for use on their websites, magazines, billboards etc., then Getty would be out of business.


In reality if you ignore them they will probably not come after you for such a small sum of money, but you attitude 'stinks'!

Getty is based in Seattle Washington, USA. Follow the advice of Copyright-guy, he knows what he's talking about. Getty has a pretty aggressive "unauthorized use" program where they reward employees for seeking out infringements. They come down hard on people who don't purchase off the website. I don't know what image you used, but if you are as small as you say you are, you could have legally purchased the image for a few dollars, legally... Why steal?

I keep seeing this "why steal", "why steal" rubbish in several posts. Do you guys actually know what goes on out there? There are many sites claiming copyright for various images out there in the world. Your normal man on the street doesn't actually know who owns what. How do they find out? It's a mix of bs, legitimate, cons, etc.


Now actually Getty uses a software that trawls websites all over the world seeking it's images. Sometimes they lay claim to images that are not theirs as experience with my friend, in fact THEY were the one's trying to steal his copyright.


Do my questions to those who keep asking "why steal". How do you find out who legally owns an image? If someone get's an image from a site where no copyright is claimed is that stealing? It it OK for Getty to chase people for demands for images that are clearly not theirs? And the last question for the Getty lovers - WHY does Getty chase small companies and not larger companies such as Google? (My answer - they are just cowards with no 'nads).

My company hired a professional web designer for our page so we were "delighted" to receive this notice. We took the images down, screamed at the web designer and told Getty to contact the Web designer as it was his contractual responsibility with us not to steal images. After a deman letter nothing came of it and that was 2008/early 2009. Suggest similar actions for people using these images.

PizzaAce- Whomever pushes the shutter button to create an image is the copyright holder of the image. All images have a copyright owner. Some image creators choose to distribute their images for free but most professional photographers charge a licensing fee for a specific usage (editorial, advertising, or corporate) over a finite period of time. As archaic as you may think this is, this is how the majority of the professional photography industry operates and how most photographers in the civilized world make a living.


In HK, companies that want to own the copyright of the images they commission, usually pay fees starting at HKD 50,000 plus expenses per image for the copyright transfer. As most companies do not have that those type budgets or want to spend taht kind of money- most companies purchase a license from the copyright holder.


There are three ways companies can get photography.


The first option is to have an employee or yourself shoot it. Digital cameras are so advanced now that its quite easy to get shots well exposed and in focus. I recommend this as it help my clients understand the challenges involved in shooting and pulling the production details of a shoot together. The main question is whether those shots will be usable and if it will be able to successfully communicate and clearly illustrate the company's message. If the images are good enough, then save your money and shoot it yourself.


Option2. If you own images are not good enough, your company can choose to commission a photographer and pay expenses on a shoot for a specific usage. Usually licensing fees in HK are for its one year usage in HK territory only. Fees vary depending on the type of license (editorial, advertising, corporate) - for example, an ad job with a three-year license covering Asia will be substantially higher than an ad job in HK licensed for one year only.


If a company does not have the budget to hire a photographer, they will most likely consider stock photography - which means they will license an existing image from a photo library. Getty is the largest photo library in the world that represents photographer and licenses images. Like commissions, fees are based on type of usage, duration of usage and uniqueness of images. Often times, these are images that photographers create for the sole purpose of reselling as stock. For some photographers, stock sales represent the majority of their income.


The main lesson to be learned here is that if you want to use an images that you did not shoot yourself - you'll need to pay a fee for it. PizzaAce, I agree with you "the freedom and low cost means to disseminate information is here" however, you still need to generate the information/content yourself or license it. Just because you read a cool story or see a cool picture doesn't mean you can publish it. Stealing other people's intellectual property is wrong and will likely be penalized - hiding behind ignorance or a defense of fair use is a poor excuse. I'm pretty sure you would be hit with a law suit if you started publishing content taken from the New York Times on your website. There really is no difference between a big publishing company or a photographer - the main difference is that photographers are usually the little guy that wants to survive in this business environment.