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Beware the image copyright web crawlers…

Do you own the copyright in all of the images in your website? If not, are you properly licensed to use them? Are you sure? What about those ones that your website designer in India used? Or those ones that your Virtual Assistant added for you? What about images used on banner adverts on your website?

Well, this is serious stuff as I have heard of a large number of cases where Getty Images (one of the largest stock photo owners) have written to website owners who are using unlicensed images that Getty claim to own the copyright in and demanding anything from £800 to £3600 for breach of copyright in the image. Apparently, they use Picscout, a clever bit of software to crawl the web and which can detect images, even if they have been amended, resized or cropped.

You can read an example of such a letter here (albeit that this is one that has been sent in the US and is under US law). I have not yet seen a copy of a UK letter but I assume that they are similar.

The Getty Letter is written in an aggressive way and presumes your guilt, expecting you to prove your innocence. The letter also states that even if you are unaware of the infringement or did not intend to infringe the copyright, you are still liable for all alleged “damages and liability”.

Well although it is true that innocence is no defence to a copyright claim, if the matter ever went to court, a judge would take into account whether or not the infringement was intentional in assessing the damages to be paid. If you did intentionally use an image without regard to paying a royalty for its use, the court may award enhanced damages. The judge would also consider how exclusive the image is, how widely it has been viewed and how long it has been on the site. The main consideration however would be how much it would have cost you to have purchased a license to use the relevant images.

So in terms of the “damages” being sought, which I understand to be anything from £800 to £3600 for the use of a single image, that is significantly more than a court would be likely to award as damages for Getty’s “loss”.

So go and check right now whether you own or are licensed to use each image that you are using on your website and if in doubt, take it down. Yes, right this minute…

If you are unlucky enough to receive a letter from Getty Images (or any other stock photo image organisation) claiming infringement of their copyright and you can’t prove that you were duly licensed to use the image, what I suggest you do is that:

1. you write back to them asking them to prove their copyright ownership in the relevant image.

2. If they prove they own it, then take the relevant image down and write to Getty explaining that you innocently infringed the copyright (if that is true…), asserting that you believe that court assessed damages would be in the region of £30 (or whatever the license would have cost) and offering them that sum in compensation in full and final settlement of any claim for breach of their copyright in that image, but making it clear that you are not admitting liability.

I am not aware of any case that has yet been heard in court but there was an out of court settlement where Getty agreed to damages of £2,000 against AJ Coles, a furniture removals company for the use of one unlicensed image. Even though the damages awarded may be low if based on what it would have cost you for a license, you should be aware that the court could order that you pay Getty’s legal fees. Saying that I believe that Getty have sent thousands of these demand letters in the UK and it seems surprising that they have not sought a test case yet. Infer from that, what you will…

When you are contracting with web designers, virtual assistants or anyone else who may be responsible for sourcing images for your website, make sure that:

1. you are upfront with contractors about them not using copyright protected images without you being licensed to use them (note, it is not sufficient if only they are licensed to use the image – you need to be licensed too).

2. if they do use any images, check with them again where they sourced the images from and that you are duly licensed to use them.

3. put in place a contract that states that if the contractor doesn’t own the IP in the deliverables (including images) that he or she will license you to use the IP and warrants that he or she is entitled to grant such a license. There should also be a provision that states that if the contractor does infringe a third party’s IP, he or she will indemnify you (i.e. reimburse you) for any loss you may suffer as a result of that infringement.

Note however that offshore contractors that you find on Elance, Fiverr or similar will be reluctant to sign a legal agreement and in any event, it will be very difficult to enforce the agreement in a jurisdiction outside of the EU – so the upfront checking at points 1 and 2 above become even more important.

If you have received a similar letter from Getty, I would be interested in hearing from you and how you responded and what action Getty took.

Copyright Suzanne Dibble, business law expert 2013

Disclaimer

Although the concepts in this article have global application, the information contained in the article is based on English law only and is provided for information purposes only and is not intended to amount to advice on which reliance should be placed. Suzanne disclaims all liability and responsibility arising from any reliance placed on such information. Professional advice should be obtained before taking or refraining from taking any action as a result of the above contents.

 

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About Suzanne Dibble

Suzanne Dibble is a multi-award winning business lawyer with vast experience ranging from acting for plc’s on billion pound projects to helping micro businesses with their day to day business law requirements. Having worked with Richard Branson, Simon Woodroffe and other famous entrepreneurs and having been a board director of a £100m+ turnover company, Suzanne is particularly commercially minded and entrepreneurial in her outlook and clients appreciate her practical, business minded, jargon-free advice. Suzanne was runner up in the prestigious Solicitor of the Year Award at the Law Society Excellence Awards 2011 and was also shortlisted in the Excellence in Client Service Award. Suzanne has won many other national awards. For details about free webinars and more practical legal advice for small businesses, go to lawyers4mumpreneurs and sign up for their newsletter.

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12 comments

  1. Hey Suzanne … Great article! One of my old web clients had got an email like this from Getty Images for an image that they had used on the site and handed over £1700 as they knew they had taken it from Google. Best just to buy your images I think 🙂 . The place that i use mostly now is http://www.bigstockphoto.com as they are pretty competitive (much more so than istockphoto)

    • Hi,Julie
      I’m just wondering how to recognize the picture copyright..some pics on my blog were chosen from google too..Is it the watermark or the alt description,,or what??

  2. Great post but what about all the sites that scrape images? Since the Google update and resulting paranoia with links into sites, we constantly have to check that sites haven’t scraped our images, resulting also in a poor quality link back to our site, whether we like it or not? I wish i had time to stop it, I want to write the “great content” that i’m supposed to – not chase after people who steal our content! any ideas?

  3. The more you know … wow, thanks Suzanne for sharing this information. I get caught up in content and providing photos to further explain my message, looking at the legalities of using photos from the web had not been on my radar screen. I appreciate the heads-up.

    Best,
    Lyndah

  4. Good reminder Suzanne. In the constant online world where copy&paste is so easy, it is important to check and make sure people respect the works of others all the way up and down the chain. I would imagine that image scanners like that will be incorporated into the search engines soon to de-rank sites that violate copyright. Thank you for the great post.

  5. Thanks for this! I am aware of all of this now, but when I first started out, I had no idea! Great information here for new bloggers, or people just getting started with social media. Thanks so much for sharing.

  6. Wow. This is a very striking article. I have just started a blog and some of the photos that I have used I somehow found them and so am not sure of the copyright claims from them. I will try to watch out more in the future.

  7. I received a notice from Getty for an image I had put up for 2 hours 2 years ago. I got the image from Facebook, without any attribution attached to it there. Getty wanted $972 USD for the infringement. I advised them I had removed it from the blog after 2 hours since it didn’t fit my post after all, and that I had gotten it after carefully checking for attribution. I offered to meet them halfway, but could not come up with the funds for that amount in one piece. They refused.

    The next time I heard from them, it was from their attorney threatening all sorts of dire consequences and the amount had gone up to $1100+. I again offered to meet them halfway, but they declined to even take the amount in payments. They wanted a credit card immediately (which I do not have, as I don’t believe in using them).

    I have since had to close my doors, dumping years of reputation building and marketing just as the business was taking off.

    I wish there were a way to counter sue.

  8. This was a very interesting Article. I do not have any images on my website but I have added lots of images I have found in the Google image section to my Facebook Business page. Does the same apply here?

  9. You know you can use Wikimedia commons, too, right? There public domain is filled with wonderful images. I’m not sure why more people don’t use it more often.

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