Strict Liability

[markt]

Recently, we received a letter from Getty Images regarding posting of 8 images on our website.  Getty Images stated that the images we were using were represented by their firm and that if we could not prove we had a valid license for them we would have to take them down and pay a demand amount of $1,000 per image or a total of $8,000.  Our programmer had no idea that the images he pulled off the web were represented by Getty (no watermark etc).  

We immediately removed the images and notified Getty Images.  They said we still owed the liability and that we must pay.  To date, we have negotiated the payment down to $4,800.  They told us that we could only get a 50% discount on the demand if we were a charitable organization.  We gave them a very true story of how our company is not doing so good and that payment would be difficult, if not impossible to make.  They suggested payments and we still held our ground.  At that point in the conversation Getty Images said they would set our case to the side for a while, but we would receive a final letter to pay in the near future.

We have received our final letter.  It indicates we must pay them immediately or legal action will be taken for damages exceeding the amount presently being offered by way of settlement.  The most interesting piece of information that they state in their letter is that copyright legislation provides for strict liability, meaining that you can be found liable for infringement regardless of your level of knowledge of the infringement or your intent.

Our site is for informational purposes and not for e-commerce.  Please explain how Getty Images believes the copyright law is strict liability and everything on this site makes an important point about innocent infringement and payment of actual damages.

Mark

[Oscar Michelen]

Let me take some time and space to reiterate our position on this so people don't have to keep looking through all the old posts:

Getty is not wrong. Getty is right that copyright law makes no distinction when determining if there was an infringement. Whether you took it intentionally, unknowingly or by mistake, if it is someone's intellectual property, you are infringing. So on the LIABILITY side, copyright law is strict liability. Now, there may be defenses to whether one infringed or not. Getty does not own the images. What they own is the right or license to manage, sell and protect the copyright to the images. Getty obtains these rights through a written agreement with the photographers. While they will not provide you with a copy of the actual agreement (signed or unsigned)  with the artist, they did provide me with the boilerplate text of the agreement which grants these rights.  
 
Getty's problem (among others) is that sometimes these photographers have granted other websites the right to sell these images. Just yesterday I received proof that my client bought the image with the appropriate license (for US$20.00 by the way) from a company called Dreamstime. Our client then went further and found that Getty Images is not even listed on the photographer's site as being one of the companies that license his images. We are now reaching out to him personally to see if he will talk to us about how and why his image ended up in the Getty catalog. I will keep you posted. But this should give pause to those that say "you stole it just pay up!"   First of all, many may not have stolen anything. Not  just because they received the image innocently or through a third party whom they paid but because the image may have legally been available elsewhere. Secondly, even if the image was licensed additionally through Getty and the photog just made an oversight by not listing Getty as a licensor,  why is Getty demanding $1,200.00 when the same image can be purchased legally with license for $20.00. Ridiculous.

Which brings us to our other point point. How you took the image DOES matter when it comes to damages.  Courts award much smaller amounts for innocent infringement. Even if Getty is suing over images that are actually registered with the copyright office a court can reduce all damages to $200 per image if the court believes it was an innocent infringement. There are countless court cases that talk about that and that award that amount. Getty chooses to ignore that; they have tried all kinds of arguments to support their position:
(1) FIrst they said "Don't forget about statutory damages, like attorneys fees and court costs!." When we pointed out to them that you only get that for registered images and that 99% of Getty's images are not registered, they changed their tactic to:
(2) "Well our actual damages takes into consideration all the additional costs of enforcement."    When we pointed out to them that you only get that for registered images and that 99% of Getty's images are not registered, they changed their tactic to:
(3) "Well we charge $1,300.00 for a two year license so these are our actual damages."  we pointed out that they had no proof how long these images were up and that their inflated rates are not what matters; the courts state that actual damages are what a person would pay in the MARKETPLACE for the image. They then changed their tactic to:
(4) "Well you know that courts often award damage multipliers in these cases, so thats why we ask for these amounts" Our response to them was that we in fact know the exact opposite.  Courts do not routinely give multipliers and almost exclusively award multipliers for registered works only.  We pointed out an April 2008 memo Getty sent to its photographers stating that they should register their images immediately because without registration it would be very difficult if not impossible to get multipliers. Now their latest position is that they only mentioned multipliers an an example and that they are back to the average costs of a Getty license as being their basis for the claim.

I will keep you posted on what occurs next. But this is the point - Getty knew all of the above when they started this campaign in 2006 or so. They had to be familiar with copyright law, but they were preying on unsuspecting consumers who didn't know better and believed their "strict liability" argument. To see the limits  Getty will go to , visit the FSB site (there's a link on the our homepage) to see how people in the UK are dealing with Getty's program in a region where the law says if there is innocent infringement, you pay NO damages. This clearly stated law has not slowed Getty down one bit.

[areeve]

That's interesting. So even if someone gives me an image under the guise that it is theirs to give, and it turns out to be owned by someone else then I'm liable for infringement with that someone else if I accept and use the image?

[Lettered]

Incredibly silly isn't it?  It's like that, presumably to not let willfull infringers try to claim they didnt know it was copyrighted. It has created a nice little cash cow for companies like Getty who apparently dont mind seeing how much they can squeeze out of honest unknowing infringers.

I truly believe that the law the way it is may be encouraging people and companies to be purposefully sloppy (or even completely negligent) in protecting their copyrights, so that they can use newer technologies to scour the web finding infringers to harrass for money.

Click this link to see who's shaping the laws:

http://news.cnet.com/2100-1028_3-6184604.html

It's hard to be heard over a groups with that much cash.

[Oscar Michelen]

You are right on the money.  The law discourages copyright holders from taking steps to insure their rights are protected. When the second version of the  US copyright law was passed in 1909 (the first was in the 1790s) , it was mandatory that the work bear a copyright notice, otherwise it was automatically in the public domain. While I think that's a bit extreme and unfair, our law should mirror the UK law - if you prove it was an innocent infringement then the copyright holder gets NO monetary damages. They can still of course make you cease and desist, but it won't cost you anything if you didn't know or had no reason to know the work was copyrighted.  Those dam Brits are so much more civilized!

[Statik]

Another aspect of the problem with the Getty demands is that they are stating that if you can't prove that you bought them, you stole them. A friend of mine gave me this example:

While working in your garage, a representative from Canadian Tire wanders in and takes note of all the Mastercraft tools you have. He asks you if you happen to have a receipt for the three year-old drill you are holding. When you can't produce one, he accuses you of having stole it, and bills you not only for the cost of the tool three years ago, but also the hourly rental rate from their tool shop, for 24 hours a day, 7 days a week for three years.

Rediculous, no? But essentially the same as Getty. You can't prove you bought the image, therefore you stole it. In most cases, people do illegally own the image. In this case, you got the tools at a yardsale. You purchased used tools from someone who was moving away and have been using them 3 years. Unfortunately for you, the former 'owner' stole them. Now you find out they are stolen. Have people ever been charged rent or statutory damages for such a situation? Not to my knowledge. Generally you just lose the use of the tools.

Copyright law needs to come back into line with common sense (one of the great isn'ts, by the way. What do I mean? Common Sense - Isn't , Military Intelligence - Isn't, Friendly Fire - Isn't). The creator of the work needs to be protected. But the criminal in the case is the one who stole the image, not the one who innocently received the stolen goods.

To carry the example along further, if you are walking along in the mall, see the drill in the store window and walk off with it, you've stolen it. Plain and simple. If you are walking along the sidewalk and come across the drill in the middle of the street, is it stealing to take it? If you purchase the drill at a yardsale, have you stolen it? Logic and Getty seem to be at odds.

Rod

[hamilsoft]

Oscar -

Does strict liability also apply to third-party ads displayed on your site?  I had a pay-per-click ad on my site of which I had no control over the content.  I received a demand letter.

[Oscar Michelen]

If you can prove that , Hamilsoft you may be entitled to protection under the DMCA and be entitled to a cease and desist letter with an opportunity to correct the infringement prior to being liable for damages. That protection (normally for ISPs) is why Yahoo and Google aren't beign crushed by this and other copyright claims.

[hamilsoft]

Thanks Oscar.  I will research.