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Getty Images Letter Forum / Being sued by Getty for images on non-live test website
« on: October 26, 2011, 03:52:17 PM »
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.
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.