6 More Tips: When you get a Copyright Infringement or Getty Images Demand Letter (Be sure to read the first 5 too!)
6. You’re Liable Even if you Didn’t Know you Infringed a Copyright. Copyright law prohibits both accidental and willful copyright infringement. As stated by one federal court recently, “there is no need to prove anything about a defendant’s mental state; [copyright infringement] is a strict liability tort." A strict liability tort is a legal wrong that does not require a “mental intent." In other words, a copyright owner does not need to prove a defendant intentionally infringed the copyright in order for the defendant to be liable because it is a “strict liability" tort. If you copy a picture from the Internet without permission, for example, you can be liable for damages even if you did not know the picture was copyrighted. Further if you hire someone, such as an employee, an independent contractor, or a web designer, you are also liable for using the pictures that third party posed to your website even if you were unaware of what they did.
Thus, the business displaying the copyrighted work without permission on their website is liable as the end user of that image. In short, the old adage, “ignorance of the law is never an excuse" applies to copyright law because even if you did not know, you might still be liable for copyright infringement. Most legitimate business want to do the right the thing and get these claims settled. If the same thing happened to them, they would feel the same way.
7. Don’t Believe Everything You Read on the Internet There are some sites on the internet that spread false information about these types of claims. Any nut with a computer can type something on a blog. As any librarian would tell you, “buyer beware." This is especially true of information acquired from the internet. Once scam site even notes that Getty Images never sues companies. This claim is absolutely false. It is a matter of public record that Getty and Corbis do sue companies. In fact, they sue large companies and small companies and they pursue large and small claims. Any site that says differently is suspect. Also look at the source of information. It is credible? Is it professional? When making important legal decisions for your company – due diligence is a must.
8. Example of Getty Images case seeking statutory damages for one image.
Beyond the public record, let’s look at the economics. Say a company has a copyright infringement claim of between $2,000 and $20,000. I know that is quite a range but the economics work out the same! The cost of defense, retaining a defense lawyer, dealing with jurisdiction and preparing an answer will cost in the range of $7,500 to $20,000. It will be more in some cases! After that (the first month) you have 18 more months to go! The total cost could be ten to one hundred times that. When the attorneys’ fees are applied, the business being sued is out of business. Why would the image companies pursue me? You are not the only one. Sometimes an image company might even be required by contract to pursue the infringements. Don’t take a change on getting embroiled in litigation. The only winners will be the attorneys (on both sides). Keep that in might when getting advice from the internet. What incentive does a blog have in telling you that you won’t get sued? One cynical answer is that they want you to get sued so they or associated “ambulance chasers" can earn fees on your misfortune.
9. Photo Agencies such as Getty Images are Well Represented. A photo agency’s life blood is their copyright protected images. One of the largest photo agencies in the world is Getty Images. Getty Images is an efficient organization when it comes to extracting damages from companies found to be infringing their copyrights. The bottom line is, their experts and lawyers know copyright law inside and out because that is all that they do day in and day out. Generally speaking, these representatives are easy to work with and professional; it is better to work with them as opposed to against them.
10. A Moral Decision Copyright infringement is prohibited by law. But more importantly, copyright infringement is morally wrong. Photographers earn their livelihood through licensing photographs. If you do not pay for the use of their photographs, you are stealing their product.
It would be similar as if someone walked into your store, grabbed a product off the shelf, and walked out with it without paying. A just and moral society can’t operate peacefully on such behavior.
11. If you Can’t get it Resolved, Consider … If you do find yourself facing a copyright infringement claim, all is not lost. In some cases, a standard business liability insurance policy (“slip and fall" policies) will cover copyright infringement claims made against a business. This special coverage, which is included in many business policies is often called “advertising insurance." Ask your insurance agent if you have such coverage. Finally, if you are uncertain of what steps to take, contact a knowledgeable attorney.
Let’s face it, checking to ensure your business has copyrights to all the images on your website might not be on the top of your to do list. If your organization is in this position and a Copyright Infringement demand letter hasn’t arrived yet, there’s still time to get your cards in order! Once a demand letter hits your mailbox, however, the game changes.
In short, do not use copyrighted content without permission. A good general rule of thumb is, “if you did not take the picture, you need to pay a license fee to use the photograph."
This is common sense. Just like you would not take candy from a store without paying for it, you should use original content on your website or license content from third party vendors like Getty Images, Corbis Images or other similar provider of stock image photography.
Timothy B. McCormack is a Seattle-based attorney with substantial copyright and copyright litigation experience, involving Corbis Images and representing Getty Images and well-known photographers. Mr. McCormack represents Getty Images and has defended cases involving copyright claims from Corbis Images.