banner exchange, but still liable?

[mappenzellar]

I did a banner exchange with a company. I was showcasing their banner in return for my company to be in their directory. Well, getty found an image on their banner on my site...well they say because it was on my site, I owe $1000 but would reduce to $650. I feel this is unique because I am in no way shape or form trying to publicize this as my image. The other companies name is right on the banner! Any thoughts?

[Oscar Michelen]

I suggest you spend some time  familiarizing yourself with the situation by reading the posts and listening to the conversations linked on the home page. In general, the "user" of a copyrighted image is liable to the copyright holder for any "use" of the image.  For purposes of who is at fault, it doesn't matter that you did not know the image was copyrighted or even that you paid someone for the image with a belief it was licensed. Copyright law is strict liablility in the US. It is a defense of course to show that Getty is not the only licensor of the image if the copyright holder (photographer) posted the image for download on other sites. Your "innocence" however is a defense to the damages portion of Getty's claim. US Copyright law recognizes that innocent infringement should be treated differently than intentional infringement so they awar lower damages for innocent infringement. The law allows a court to go down to $200 per image for example. That amount is for images which have been registered with the US Copyright Office.  Nearly all of Getty's images are not registered, leaving them only allowed to collect "actual damages." We argue this would be the fair market value of the image if you had to go out into the marketplace to buy the image. For most stock images, that would be somewhere between $20-$100. Our program here is to send a letter to Getty outlining this position. To date, they have sued no one but are threatening to do so any day now.

[mappenzellar]

I guess it just seems odd. Most of these cases that I have read all used images to publicize themselves. This was a banner exchange. The banner on my site had the other companies logo right on it. So if you are correct, let's say I made an ad that had a copyrighted image and paid to have that ad advertised in the new york times. Getty could sue the new york times? I didn't, but figured I would ask in a different way.

[Oscar Michelen]

That's good analogy though a paid advertisement would be different. When it is a paid advertisement on a hard copy medium, it is fairly clear who provided the material in the ad. Advertisements in newspapers must contain their own copyright notice to be enforceable, and are not covered by the newspaper's general notice in the newspaper. This requirement is erased, however, if the newspaper itself is the sole owner of the advertisement. The newspaper should include in its rate card information concerning the requirement of notice if the advertiser intends on claiming copyright protection for the ad. Newspapers can be responsible for violating copyright and trademark law if they knowingly placed ads with material  that infringed those rights.  With a banner it may be harder to show that you did not put it up yourself or benefit from it directly by having it "adorn your site."

[mappenzellar]

But I sent getty the information right from this companies website explaining exactly what I should do to put it on my website. Actually here it is - http://web.archive.org/web/20060204033003/http://www.topweddinglinks.com/Listing/reciprocallinks.html if you scroll down, the image in question is - http://web.archive.org/web/20060204033003/http://www.topweddinglinks.com/images/$twl00.gif which is still live on their site by teh way.

[areeve]

Wow, I really sympathize with your situation (not that I don't with all, but to have a 'Getty Image' show up from ad exchanges and have the blame cast on you). Getty unfortunately doesn't really like to listen and I think that's why it's really nice that Mr. Michelen is here.

This does remind me of my analogy where they claim (and it sounds like it might even be correct?) that because the images appear on company X's website web designer Y (that put the images there) isn't liable, but rather company X is. My counter-example to that is "what if I set up a site for a competitor and load it up with Getty Images?". Does this mean I can 'create' infringement against other parties by setting up dummy sites with their address/contact info on?

Furthermore, I doubt copyright law was written factoring in things such as banner exchanges on websites.

- Alan

[Oscar Michelen]

You're right Alan, the Digital Millennium is definitely impacting copyright law on a daily basis.  As to your example, let me just explain that while the copyright holder (Getty) can go after the end-user (guy who just did a banner exchange or website owner)  if that person loses in a lawsuit or even settles with Getty, then they have a right to go after the person who put them in that predicament (web site developer, template maker or competitor who intentionally caused the infringement). Getty just does the easiest thing - go after the end user and make the end user sweat it out. Also, by going after the web user and not the techie, Getty is likely to come up against someone who can understand the true value of a low-res website image or who can explain the source of the image. Most of my clients were victims of web developers/template makers in Pakistan and India who are now impossible to locate so they are stuck holding the bag.

[mappenzellar]

I can only hope that I might have a case as Getty has put this case on hold 3 times so far...not sure if they would do that unless they thought I might be able to win some how??? Who knows. My point to them is...I provided them with as much info about the person who provided the banner as I could...I told them they shoudl be going after them not me. Fingers are crossed.

[mappenzellar]

I just got a message stating that they are "willing to waive settlement for this case". I am very happy that they looked at my case open minded and made the right decision.

[Oscar Michelen]

That's great!  Did they say why? and who placed the call or email?