Free Web Template Case and "Remix" Copyright Law?

[Lettered]

My understanding is that the mere act of making a copy of a protected work is infringement.  So, I don't really think what stage the website is in is relevant; if the protected work appears there, then it is infringement (assuming it isnt fair use).  In other words, I don't think it matters if the website is considered published or not by anyone's definition.

Still, like most others here, I don't think there's a need to "sweat" a single image case like this one.

[SoylentGreen]

I think that Lettered nailed it.
We've discussed such things in the past many times.

I can get all sorts of "free" images to use.  But, I buy royalty free stock images.
Why?  To avoid claims such as the one that the original poster (OP) received.  I have a license and receipt when I buy.

In any case, if it's offered up for "free" on the web, Getty couldn't get much more than the price of an innocent infringement ($200).
...and they'd have to spend many thousands of dollars in court costs to get that.  Getty's content isn't registered, so they couldn't get those court costs.
Plus they never sue over a single image... a single image that's a "mash-up" of other images.

I hope that clears everything up.

S.G.

[Moe Hacken]

I don't think anyone here is saying an infringement did not happen. The stage at which the website had been developed could be relevant to argue an innocent infringement defense. Not that much harm, not that much foul, not that much should be awarded.

Which is exactly why it's not likely Getty will go to court over this matter. There's little upside in it for them.

[SoylentGreen]

I disagree that a site in a state of test/construction meets the test of innocent infringement in terms of an image placed on it.
The state of completion of a website should not cause the publisher to determine that any given image is not covered by copyright.
I think that "innocent infringment" is being confused with "de minimis damages".
The alleged copyright holder couldn't prove much value in damages because the site didn't make sales.

S.G.

[Oscar Michelen]

SG - just want to clear up that in a quirk of the law the "innocent infringement" reduction to $200 applies only to statutory damages not actual damages. While courts in assessing actual damages often take into account how and when the work was infringed, there is nothing in the Act that reduces actual damages based on the innocence of the infringement. With Getty claims the best argument remains "de minimus" infringement and that actual damages means what price the marketplace usually places on this type of image ($1-$50) not Getty's exorbitant pricing scheme.

[edward1234]

I think the below quote sums it up exactly.

Oscar, would you be so kind as to provide further information on this automatic $200 damage amount? How does that work?

Thanks so much!

I disagree that a site in a state of test/construction meets the test of innocent infringement in terms of an image placed on it.
The state of completion of a website should not cause the publisher to determine that any given image is not covered by copyright.
I think that "innocent infringment" is being confused with "de minimis damages".
The alleged copyright holder couldn't prove much value in damages because the site didn't make sales.

S.G.

[SoylentGreen]

Thanks to Oscar for his input, and the reminder!!

"Actual damages" refer to the actual retail price of the image; what Getty would license the image for.
The price would reflect where, when, and how long the image was used, as if you actually licensed it from Getty.
It's important to remember that while Getty makes large demands in its letters, the actual pricing is usually much less than this.

"Statutory damages" refer to costs above and beyond the actual price of the image.
This is of major concern, as it may include legal fees incurred by the plaintiff, loss of profits, and other costs.
These damages can really add up, as anyone who's needed the services of a lawyer can attest to.

In the US, one may only seek statutory damages if the image has been properly registered with the Copyright Office.  Otherwise, the plaintiff may only seek actual damages.
In Canada, one may seek either statutory damages, or actual damages.  The choice is not dependent on registration with the Canadian Copyright Office, although that would help the plaintiff's case greatly.

It's easy to see why Getty doesn't give any information about the status of the content that it sells.
They wish to give the impression that all of their images are registered with the copyright office, in order to make the spectre of statutory damages loom over the alleged infringer.
Also, a proper registration is an essential part of proving a case in the event of a dispute.

What Oscar is saying is that if the defendant successfully pleads "innocent infringement", the penalty could be as low as $200 in the US.
But, if Getty felt that the alleged infringer could do this, their strategy may be to sue for actual damages if those amounted to an excess of $200.

In US law, "innocent infringement" is defined as "In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."
http://www.copyright.gov/title17/92chap5.html#504
It's up to the court to decide the validity of the defendant's defense of "innocent infringement".  But, such things would likely include situations such yours wherein something was offered for free use, and you acted in good faith and belief.

Having said all that, the major stock image companies have been largely unsuccessful in their court endeavors.
All this talk of court and lawsuits isn't intended to scare anyone.  Lawsuits are quite rare.
Getty's never sued over a small number of images.  Masterfile has in the past, but they seem to be on hiatus for now.

S.G.

[Robert Krausankas (BuddhaPi)]

 Masterfile has in the past, but they seem to be on hiatus for now.

S.G.

That's putting it mildly! Masterfile aka "MasterFail" has certainly lived up to their new moniker, Thanx to Oscar for a major beatdown..

[SoylentGreen]

Yeah... they're not even filing suit as a scare tactic anymore.
Must have really thrown off their game.



S.G.

[edward1234]

I can't find the "bow down to you" smiley put please imagine it here

Thanks to Oscar for his input, and the reminder!!

"Actual damages" refer to the actual retail price of the image; what Getty would license the image for.
The price would reflect where, when, and how long the image was used, as if you actually licensed it from Getty.
It's important to remember that while Getty makes large demands in its letters, the actual pricing is usually much less than this.

"Statutory damages" refer to costs above and beyond the actual price of the image.
This is of major concern, as it may include legal fees incurred by the plaintiff, loss of profits, and other costs.
These damages can really add up, as anyone who's needed the services of a lawyer can attest to.

In the US, one may only seek statutory damages if the image has been properly registered with the Copyright Office.  Otherwise, the plaintiff may only seek actual damages.
In Canada, one may seek either statutory damages, or actual damages.  The choice is not dependent on registration with the Canadian Copyright Office, although that would help the plaintiff's case greatly.

It's easy to see why Getty doesn't give any information about the status of the content that it sells.
They wish to give the impression that all of their images are registered with the copyright office, in order to make the spectre of statutory damages loom over the alleged infringer.
Also, a proper registration is an essential part of proving a case in the event of a dispute.

What Oscar is saying is that if the defendant successfully pleads "innocent infringement", the penalty could be as low as $200 in the US.
But, if Getty felt that the alleged infringer could do this, their strategy may be to sue for actual damages if those amounted to an excess of $200.

In US law, "innocent infringement" is defined as "In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."
http://www.copyright.gov/title17/92chap5.html#504
It's up to the court to decide the validity of the defendant's defense of "innocent infringement".  But, such things would likely include situations such yours wherein something was offered for free use, and you acted in good faith and belief.

Having said all that, the major stock image companies have been largely unsuccessful in their court endeavors.
All this talk of court and lawsuits isn't intended to scare anyone.  Lawsuits are quite rare.
Getty's never sued over a small number of images.  Masterfile has in the past, but they seem to be on hiatus for now.

S.G.