Being sued by Getty for images on non-live test website

[Mastrik]

Hello everyone, this is actually my second go round with a company suing my client for copyright infringement. Last time Masterfile tried to get my mother for a template she purchased from templatemonster.com back in 2004. Luckily, we located the receipts and although Masterfile is still pushing, templatemonster.com is handling it at no charge (as they should).

This time Getty Images has sent a letter to a client of mine for an image I used during the design phase of a project (I gathered a hundred or so images and incorporated them into the design for my clients to choose from). I had these stored on their in-house web server in a sub folder of the website (not directly accessible to the public). This folder contained the draft of the new website while the old website was still live. The reason for this is there were databases and other files and API's used in the old site that were going to be in the new design. I saw no problem with this, as it wasn't publicly accessible and in the design phase. At this point in my career, I am keenly aware of copyright infringement but I didn't know this applies to sites under development even if they aren't live.

Part of my design process includes giving my clients full access to the development site so they can critique and comment on it. This includes images found through Google that may or may not be used in the final live site. The client chooses which images to keep at which point I contact the copyright holder (in this case iStockPhoto.com) and obtain a license. I see no need in purchasing hundreds of images for a client to review when only a few will be used in the final product. So, I purchased license for every single image on the site but not every one we ever considered.


So, Getty was able to access the test site (they stated they use "crawlers") and hit my client for one of the images they saw on a page that ended up being cut from the final site. Yes, I put the image up for consideration but since my client didn't like it, I never bought it and never published it to the live site. However, since I didn't password protect the directory (this was on purpose the client has issues with logins), Getty says that is considered a live site, even though the real site that was live was completely different and this was obviously a development folder.

As a matter of fact, I published and bought all the legitimate images 5 days after they took their screenshot pic back in June when I published the live site. They state that they reject that explanation and even though the image was up for 5 days (the site went live then) it was rejected and I purchased everything on the final site it's still infringement and my client has to pay.

They seem to only have a screenshot and Way Back Machine doesn't show the offending page only the old and new sites (with legit images). They want $600, should I fight this?

I should add, I called them and explained it wasn't live but they rejected my explanation saying even though it wasn't accessible from the live main site, the fact that they could access it made it a violation. The $600 is a reduced offer from $780 for the one image. Did I make a mistake by calling? They are suing my client not me but I'm responsible not them.

They say I violated this specifically:

1.            Grant of License. Getty Images grants to you, for a period of thirty (30) days, a non-exclusive, non-sublicensable, non-transferable and non-assignable right to use the image and/or film preview file you have selected and any derivatives or copies (collectively, the "Licensed Material"), on your personal computer and, in the case of film, in any test, sample, comp or rough cut evaluation materials. The Licensed Material may only be used in materials for personal, noncommercial use and test or sample use, including comps and layouts.

2.            Restrictions.

2.1          The Licensed Material may not be used in any final materials distributed inside of your company or any materials distributed outside of your company or to the public, including, but not limited to, advertising and marketing materials or in any online or other electronic distribution system (except that you may transmit comps digitally or electronically to your clients for their review) and may not be distributed, sublicensed or made available for use or distribution separately or individually and no rights may be granted to the Licensed Material.


The page at that time was NOT accessible by the live site in anyway. Was not published or promoted. It seems I may be in compliance with the 1st paragraph as it was used nonpublically for only a couple of days as the site went live without the image just 5 days later. Especially this line "(except that you may transmit comps digitally or electronically to your clients for their review)". But I don't know. It doesn't make sense. It was accessible if one new the specific path or used a spider to locate it. But that can't be illegal.

[Robert Krausankas (BuddhaPi)]

I would fight it tooth and nail...
1. the site wasn't live
2. the page in question was not accessable to the general public.
3. GI has no business spidering directory's that are not associated with the site.

I like to think they have no business spidering anything if robots.txt instructs them not to, but they don't play by the rules and go so far as to diguise picscouts user agent, thus skirting robots.txt..

for future reference you may want to password protect your sub-directories ( the client will have to learn to deal with a username/password), and instead of hosting the images, you can link to them right from the photo-agency's site, as this would not constitute infringement, while at the same time allowing you to use the images as previews..

[Mastrik]

Thanks!

That's exactly what I thought, I even mentioned to Getty that I found it interesting they were able to get to a non-publicly accessible page and the only way I could think of was a spider or bot that ignores robots.txt, of course there was no reply but he seemed to not disagree that they use spidering.

Plus I found it interesting that the top part of the page (the menu and title which would have said DRAFT) was cutoff in the screenshot. Surely this isn't all they have. Way Back doesn't show anything (it shows the site with all the licensed stuff all the way back to the old site (which makes me wonder if I should check that too?) are there other archive sites that may have the full site on that date? I'd love to show that it says draft or that it was inaccessible from the real site.

 Anyhow,he guy also told me that simply password protecting the directory would have sufficed. Which makes me mad that a private corporation can dictate such things to a private citizen and if I fail to comply I can be sued.

I agree though, from the specific clauses they emailed, I appear to be totally in the clear. You would think the fact I purchased a bunch a few days later and then actually published the page (created links and added to the menu of the site) with nothing but the images I bought will convince any judge and that it was obviously a draft page using comps transmitted to my client for review and not meant to be live (otherwise I would have bought the offending one along with the other images). Hopefully the burden of proof is on them and I don't have to worry about making non-technical court people understand the difference between a live page and a draft and the reasons why I develop like I do.

Again, thanks for the reply, I'm trying to shake off the anger but after the thing with Masterfile around the same time I was doing this site, it pisses me off I can be so careful and yet another client gets one of these letters. I should have taken copyright law or something.

[Robert Krausankas (BuddhaPi)]

check domaintools.com, they use them as well, but domaintools does abide by robots.txt for future reference..

[Mastrik]

Ok, so they are going after my client and although I don't mind paying for retaining Oscar, I worry about setting a precedent and the next letters that come, cause you know they will, they will expect me to pay for any and all defenses regardless if my work is compliant or not. That could get expensive and unless I'm at fault I don't know if I should agree to pay for every scumbag that threatens a lawsuit.

I guess my next step here is to write a certified letter, but do I do that or does the client? Of course I will explain that while yes I did use the image for a draft page prior to publication, the fact that I did not use the image on the final live version of the site should alleviate any concerns tha I violated any laws.

My client says that since I built the site he wants me to handle everything, but according to the letter they won't even talk to me unless I am offering to pay the balance in full.

Question is, is there anyway I can handle this without their involvement or will they need to hire lawyers, write letters, etc? I want to fight it because unless they cant prove that it was a live site (which I don't see how) they don't have a case, I wouldn't think. Or do I explain to my clients that they have to fight it and only I can tell what happened and provide any documentation but that's as far as I can legally go.

I hate it's happening to them, but it appears I can only do so much.

[Robert Krausankas (BuddhaPi)]

I've been in a similar situation, with a client getting the letter ( all images I use are generally supplied by the client and it's up to them to obtain the images correctly, I go to great lenghts, explaining all of this to them.) anyway in this case there was an image that was perhaps used as a placeholder, as neither I nor my client can explain where the image came from...but it's there.. What I did was ended up having my client retain Oscar, I then credited my client for future work / hosting.. You will probably have to follow this as well , as GI won't want to deal with you, they want the domain owner plain and simple.

[Matthew Chan]

It is safe to say that website developers working with 3rd-party clients on test websites also need to exercise great care.

That means if you are working with a client, you better make the test site password-protected or use public-domain images (many government website provide this) as placeholder images.

Unfortunately, there will be more website developers who will continue to get ensnared in the stock photo industry trap. Most clients are pretty ignorant about all this and it will force website developers to be much more proactive so that they are not negatively impacted if and when an extortion letter shows up.

Matthew

[Mastrik]

By the time I designed this website, I was extremely aware of these letters as my mother was served with a huge one from Masterfile prior to this (we had receipts though and it was live), so I really made sure I didn't put anything on the site that wasn't original or properly licensed , I even emailed iStockPhoto to make sure I was properly licensing everything (and actually changed and added a lot of pictures on that same day to iStockPhoto ones so everything would be in one account, so when they (Masterfile, Getty or whomever) served them with one of these, I'd whip out the licenses and it would go away.

However, I did not expect them to spider the site using software and accessing development pages. In large redesigns, like this site, the week prior to launching pages for the site, I place them in the same folder as the live site (as rather than have them expense another server just for testing I can measure results using existing equipment). During this week, I put usually modify and/or change images to consider on the final live site and test things like live chat, links, and any databases and whatnot. This minimizes costs as well as downtime on launch day. One of the last things I do before "flipping the switch" is acquire licenses for the final page (when we are sure that's what we want, sometimes it changes last minute). In some cases (like this) some images weren't put on the live site either because we didn't like them or I could not locate the copyright holder. I was very careful and, I thought, thorough.

Now since these pages were in the final stages they were not publicly available, unless one were to scan the server like Getty did or use other tools to locate non-published files and directories. As far as I can tell, I'm in compliance with both of the regulations they say I violated. It wasn't "live" and was meant for review only. The page didn't even go live until the 25th. 5 days later after their screenshot I buy the pictures that are there to this day, I think that makes it kind of obvious, if I were using unlicensed images, why would I buy  any at all?

However, they state, like you do, that I should have had it password protected, but password protecting individual pages, especially ones with scripts, databases, and other things would interfere with testing. Of course there are ways of locking it down , but the site contained no sensitive information so security was not a concern and I didn't think the additional costs of locking it down were necessary (I mean really, spidering?).

I'm worried because I actually went through a few hundred images (all comp use to my understanding) during the course of designing this site, and none of the development pages were locked down. At the same time, none of them were live, but like in this instance, they could have been accessed by spidering, scanning, and even hacking. I'm really sweating that we're looking at a few million dollars in demands from other, future letters from other companies, even though everything on the site is licensed and has been, but if they got into the development pages especially in the beginning.....whew.

Of course, I'll need to just up security on all future sites to avoid this, but is it possible this could get crazy? Should we expect letters from the other companies too? By not password protecting the development pages, does that make it a violation anyway?

I wasn't worried before, I'm pretty schooled on this stuff (thanks to this site!), but just the sheer amount of pages that I put numerous sample images on and the fact that I never considered copyrights during non-published development or that they could access these pages (and I could be reasonably sure the general public couldn't) and now it turns out that my client (and in turn me) can be held liable for it by multiple companies scares the poo out of me. Seriously.

I was wanting to try to handle this with a letter explaining my position but I'm beginning to wonder if I need a lawyer. I'm not sure what to tell my client, not trying to mooch free advice here, if you feel I'm approaching mooch status that let me know, this is kind of freaking me out now. Just looking for guidance because if it starts costing money, I know my client is going to want me to pay for everything and I'm a little worried about setting a precedent should other letters start arriving.

Thanks for responding (everyone), I really appreciate it.

[Matthew Chan]

In theory, all the scenarios you listed COULD happen. Will they all happen? Not likely especially if you take corrective measures now.

But part of taking these corrective measures goes beyond the technical aspects.  It is actually getting familiar and getting educated on these extortion letter issues. The longer people stay ignorant on these issues, the more the fear will grip them.

I have said this many times before, it isn't quite as easy as the stock photo companies make it sound of filing a lawsuit and taking it all the way to victory.  Alas, few people believe this and they let their own ignorance get the better of them and the irrational fear takes over.

Just because someone demands or threatens doesn't mean it can actually happen.  We do have courts of law that have judges that generally have some common sense.

If it was so easy and inexpensive to file lawsuits, there would be a ton of lawsuits flying around already. Thanks to Righthaven, judges have shown they don't take too kindly to companies using the court system as their collection agencies on trivial matters. RIAA tried this several years ago and they got severely reprimanded for this approach. So much so, RIAA has mostly given up such tactics.

The stock photo industry is now in this game except (so far) they have been smart enough to not actually pull the lawsuit trigger yet. They know there is related precedence in these types of matters. I guarantee you they will not casually file a lawsuit on any small-timer without some extremely careful thought and consideration.  The minute they do, you can believe they will open a Pandora's box.

As long as they stick to letters and simple threats, they will probably be ok.  The problem is the majority of letter recipients are too lazy to learn more about this and they don't know the first thing about fighting or defending themselves.  Sometimes, all it takes is to just say NO and move on.

Matthew

[Matthew Chan]

Regarding clients and their issues, they can raise all the stink they want but until they actually incur actual damages and losses from a lawsuit, clients won't have anything to jump on web developers about except for the fear, frustration, and aggravation factor.

Clients need to understand that they need to do their part and get educated on the issue as well.  I believe in trying to make things right. However, making things right doesn't simply mean paying out whatever they deem necessary or just rolling over.

Clients have just as much right to jump on these forums and use the free information to their benefit.  But if they don't bother to even seek out free information on the Internet, it is going to be hard for me to feel any sympathy.  Some people prefer to stick their heads in their sand and complain instead of taking some meaningful action and get up to speed.

Every client/vendor relationship is different and so each party needs to evaluate whether the relationship is worth keeping or if parting ways is the way to go. Personally, I would try to help and work things out but if they became too unreasonable and irrational, then I would cut them loose.

Matthew

[Mastrik]

Thanks so much, I thought I learned quite a bit from the Masterfile situation from another client/my mother, but it went away so quickly and this situation is quite different that it freaks me out a bit, especially knowing I did put that image there but did it in compliance with the law (as long as it is accepted as being a development page and not public) I think.

I think I need to get away from my reasoning and look at it from a logical, legal viewpoint and realize that this is a relatively small matter (especially compared to my mother's and what seems to be the majority of others).

I think my biggest fear is setting a precedent and paying for this one when the possibility of a larger demand from another company that could get potentially expensive could be around the corner. Then again one cannot live ones life in fear over things like this I guess.

Considering if I would have just locked down the development site and this wouldn't have occurred at all, I will probably just foot the bill and hire Oscar for them with the requirement that they educate themselves on the matter and if it happens again they will need to cover all expenses up to the point it is shown that damages are incurred as a result of my actions or inaction. At that point I'll see if it's something worth losing the client over but this (even if I paid Getty off) is too little a thing to allow it to become a wedge between me and my client, they are my biggest currently.

At least they agree that we should not pay this and if they (Getty) continue to push we will fight it all the way. I'm going to read a bit more on this, but it looks like my best bet would be to hire Oscar and let it go away like that. At least, I hope it'll work out like that.

Thanks, again, you've been a great help! I'll definitely be making a donation to this site for all the great work!

[Oscar Michelen]

I think Matt really nailed this issue but often web developers have us send the letter just to stop their clients from receiving further communication.  Often the end users have less stomach for fighting this issue and don't understand the IP issues as well as the developers (which is why Getty likes to target them and wont deal with the developers). I also agree that a test site that was never live is not one that causes damage though Getty could still argue that you are making a commercial "use" of their images without license.