Retired Forums > UK Getty Images Letter Forum

Can we just 'bottom line' this ?

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SherylM:
I've done a lot of reading about all this and just want to get some hard facts on a couple things.

First of all I will say, I know it's inherently complicated because the details of every situation may be different. But in UK copyright law we have section 97 which deals with 'damages' when a copyrighted work is accidentally or innocently used, is removed when notified, and the use is not 'flagrant' etc. (I am paraphrasing).

This seems reasonable and in keeping with the spirit of the law. Sooooooo, my question is this: If the use of an image was unknown/accidental and is sufficiently trivial, was removed upon notification etc. Is there some over-riding element elsewhere in the law that makes section 97 an invalid defense ?

I also have a question about what is likely to be actually awarded by a court if Getty were to win. They may be asking for one amount in their letter, it could be that a different amount would actually be calculated had someone bought a license. And then there is the very real element of 'fair market value', so if a very similar image is offered for 1/10th of the price - then are they not going to have a hard time proving their fee is justified?  If I turn this around for a sec, lets say I put up some stock photos and 'ask' £10,000 for the license fee. No one is going to pay it, but if I circulate these images enough someone may just use one not realising it is copyrighted, now surely I cannot just file my court papers and sit back and wait for 10K to be awarded to me.

---this brings up another point about how the court will see 'fair market value' and the idea of damages or loss, many of these Getty images are now free to embed. Surely that diminishes their justification of the fees they are demanding?

I understand and fully support the function of copyright law to protect creators and deter infringement but surely there is a line to be drawn somewhere.

So can we 'bottom line' this whole thing to some degree here?  Basically with: 1. is section 97 applicable or not? 2. What actual amounts will the courts award if Getty wins?

Lastly, if the amount being 'demanded' is under the threshold would this be a small claims action?  Whatever court hears it they must know UK copyright law in great detail.

 

DavidVGoliath:
You need to look at the text of Sect. 97 in its entirety

"Provisions as to damages in infringement action.

(1)Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(2)The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to—

(a)the flagrancy of the infringement, and

(b)any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require."

As infringement actions are largely civil claims, the onus is on the defendant to prove that they had good cause to believe that the image used was not protected by copyright. Also, even the vacating of damages in a case still gives the plaintiff leave to seek other recourse ("but without prejudice to any other remedy")

As to the amount of damages that might be awarded, all that the plaintiff needs to show is that their license was reasonable and in line with common industry averages, and there is case law to reinforce this

http://www.bailii.org/ew/cases/EWPCC/2013/26.html

Look at sections 13 and 22 in particular

So it boils down to this; if anyone were sued through the courts in the UK for a copyright matter, case precedent has clearly established that a correct measure of damages is a reasonable license fee, plus such mark-ups as may be fair and just.

In addition to damages, a defendant may also be awarded costs. In the Sheldon vs. Daybrook case, although the judge awarded damages of £5,682.37 excluding VAT and interest, I believe the entire matter was settled for a low five-figure sum, as the parties reached an agreement on costs out-of-court.

For what it's worth, Certain court tracks bar either party from applying for costs as they permit self-representation (the Small Claims Track of the Patents County Court is an example) but still, the cost to defend a claim - in terms of time and expense - can be considerable... thus if you have infringed, it may be worth assessing whether settlement of the sum claimed is the least expensive of the two options.

SherylM:
Thanks for your reply DavidVGoliath. I suppose what I need then is the legal definition of 'damages' as it applies here. You seem to want to put forth the notion that section 97 will be ignored but it would seem to me squarely aimed at the kind of activity we're talking about with trivial / 'innocent' use of a photo.

I thought, perhaps wrongly, that anything Getty is seeking is considered 'damages' when it actually goes to court. Whether that is simply a license fee or something else. I will see about having a copyright lawyer clarify these points for me for future reference.

I think in the area of 'fair market value' they would need to show that the fees they are requesting are actually being paid for that image by real customers. Your example is irrelevant because we are talking about a very different situation when talking about a stock photo with a very defined license fee pricing structure vs an exclusive photo that was not being offered for sale in such a way. An example in music would be the use of the Rolling Stones string melody by the Verve in 'Bittersweet Symphony'. It was not a case of something that was available to buy a license for.

As I have said, I understand the need for intellectual property protection under the law but there is also a divide between what is reasonable and what is not. As an analogy, imagine I own a company that leases powertools and I offer a drill at the rental price of £10.00 a day. Someone informs me that they think one of my drills is in your garden. They jump over the fence and recover the drill and sure enough it is mine and I can prove that with the original invoice. So I then send you a bill for £300.00 because I estimate it has been in your garden for 30 days.

Now, you're a bit surprised because you just assumed the pile of tools in your garden were owned by the builder you had doing some renovation.

So in this case do you think you should pay me the £300.00 I'm asking for?   That's about what we have with this Getty thing. Do you think it would be reasonable to get taken to court and for the court to find in my favour? Of course not, but that's kinda what is being suggested by some here.

 

DavidVGoliath:

--- Quote from: SherylM on August 22, 2014, 02:05:18 PM ---Thanks for your reply DavidVGoliath. I suppose what I need then is the legal definition of 'damages' as it applies here. You seem to want to put forth the notion that section 97 will be ignored but it would seem to me squarely aimed at the kind of activity we're talking about with trivial / 'innocent' use of a photo.
--- End quote ---

Section 97 only offers a defence if the defendant had reason to believe that there was no copyright vested in the work; for example, that more than 70 years had passed since the death of the author, or that the author had renounced copyright.


--- Quote from: SherylM on August 22, 2014, 02:05:18 PM ---I thought, perhaps wrongly, that anything Getty is seeking is considered 'damages' when it actually goes to court. Whether that is simply a license fee or something else. I will see about having a copyright lawyer clarify these points for me for future reference.
--- End quote ---

The damages are largely assessed on what a willing plaintiff could have licensed the image for to a willing defendant. There are other factors that come into play in determining the total amount that a defendant could be found liable for, but the "lost" license will, in the majority of instances, make up the significant portion.


--- Quote from: SherylM on August 22, 2014, 02:05:18 PM ---I think in the area of 'fair market value' they would need to show that the fees they are requesting are actually being paid for that image by real customers.
--- End quote ---

Partially; they only have to show that the license being requested is reasonable and broadly similar to other licenses in the marketplace - so, if we're talking about a "stock" image, then they might put forth evidence that similar photographs from other vendors (eg. Corbis, Shutterstock) are also licensed for fears that are within approximation of their own fees.


--- Quote from: SherylM on August 22, 2014, 02:05:18 PM ---Your example is irrelevant because we are talking about a very different situation when talking about a stock photo with a very defined license fee pricing structure vs an exclusive photo that was not being offered for sale in such a way. An example in music would be the use of the Rolling Stones string melody by the Verve in 'Bittersweet Symphony'. It was not a case of something that was available to buy a license for.
--- End quote ---

The example is wholly relevant; case law shows that the consideration is weighted towards what the plaintiff would have been able to collect in terms of a reasonable license fee. Establishing what that license might have been is easier for photography than your example of music, because sync of sample licensing is elastic in terms of pricing as it is dependant on many variables - far more so than stock or rights managed photography - which is why there are specialist agents who only deal in sync and sample licensing for music.


--- Quote from: SherylM on August 22, 2014, 02:05:18 PM ---As I have said, I understand the need for intellectual property protection under the law but there is also a divide between what is reasonable and what is not.
--- End quote ---

Again, the case precedent I put forth shows clearly in which way the law leans - so long as the defendant can prove the portion of their damages claim that relates to their license fee is reasonable, then it is fair to assume any judgement will fall in that direction.

You'll forgive me if I don't address your analogy as I can glean little from it. If you would care to share some more general details as to the claim you are facing, I might be able to offer some suggestions to you.

SherylM:

--- Quote from: DavidVGoliath on August 22, 2014, 04:11:10 PM ---
--- Quote from: SherylM on August 22, 2014, 02:05:18 PM ---Thanks for your reply DavidVGoliath. I suppose what I need then is the legal definition of 'damages' as it applies here. You seem to want to put forth the notion that section 97 will be ignored but it would seem to me squarely aimed at the kind of activity we're talking about with trivial / 'innocent' use of a photo.
--- End quote ---

Section 97 only offers a defence if the defendant had reason to believe that there was no copyright vested in the work; for example, that more than 70 years had passed since the death of the author, or that the author had renounced copyright.


--- End quote ---

There are lots of situations in which it could be legitimately believed that a photo was not subject to a copyright claim (part of a collection buy-out, creative commons, public domain, etc).

As I mentioned, I will speak with an IP lawyer to clarify these points for me. I maintain that I find it unreasonable in principle that a scenario of unintentional and trivial use (which is rectified imediately upon notification) would be treated in such a draconian manner. It falls outside of the spirit of the law and into the realm of abuse.

Having said that, I am about to make available a bunch of my own photos for licensing and I am thrilled at the prospect of so much easy money knowing I can extract such sums for even the most obscure and inconsequential use, regardless of any malice of intent or even awareness, personal gain or provable loss on my part. 'Seems like a wonderful business model. (actually, it would seem I don't even have to prove someone used a photo, only that picscout found it on their server, brilliant! )

In the Daybrook/ Sheldon case, do we know if they appealed? Did Daybrook just pay up? I maintain that it's a VERY different matter when the photo in question is so specific, ie a celebrity etc because in such a situation you probably won't have thousands of substantially the same thing available free, it's not like a generic pic of a cactus or something. Also, in that case it could be argued both that their use resulted in financial gain and / or was 'flagrant' thus section 97 not being applicable. Another big difference about that case is that they used the photo and that point is not in question. With many of the people on here that have received the Getty letter, it is simply picscout finding an image on their server, no proof they ever used it, or for how long, if anyone actually saw it etc.

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