Friday, 11 September 2009

Picture agencies and unauthorised use

Out-Law reports that Getty Images has recovered nearly £2,000 in damages (and its legal costs) from a removal company that used one of Getty's images on its website. Pinsent Mason, the firm that publishes Out-Law, acted for Getty.

The damages were awarded to Getty despite that fact that the defendant removed (appropriate!) the image from its site as soon as it received a letter about it. Most recipients of similar letters react the same way - then they plead innocence, perhaps on the basis that their website designer (make that ex-website designer) had done it. Alternatively, as in this case, they then ignore it and hope it will go away. Getty are not the sort of people who are inclined to go away.

I sympathise with all concerned, to some extent. Getty are not selling their own work: they represent professional photographers, who need to protect their copyright. They cannot allow infringements to pass unremarked. On the other hand, the defendant could be (pretty) innocent, which might give them protection from paying damages for infringing. They probably should have dealt more carefully with the matter in the contract with their website designer (but there often isn't a contract at all), and the website designer should have known better - after all, they are charging a fee to do the work and should do it professionally. They should also know that just because they didn't get it from the picture agency's site, there might not be an agency somewhere that has a right to be paid.

What I don't have much sympathy with is the heavy-handed attitude of the agencies, or the way they go about collecting what is due. They don't usually threaten to sue for copyright infringement, which would be expensive and uncertain: they send an invoice and then claim when it isn't paid. They can do that in the small claims court rather than the High Court, although what happened here is that they did sue for infringement in the High Court. They probably thought it worthwhile pour encourager les autres: it's also useful when your lawyers produce a widely-read journal in which it can be publicised, a very astute move by Pinsent Mason.

The normal measure of damages in a case like this would be (as Out-Law notes) the commercial rate for the use of the picture. Getty also claimed the cost of tracking down the infringement along with additional damages, available if the infringement is flagrant, and what they referred to as "insidious damages", representing the damage caused to their ability to charge a commercial rate to other users. The settlement agreement does not explain what happened to these claims, but £2,000 sounds like the standard-rate charge without either of these types of extra damages.

1 comment:

Anonymous said...

So if, as with someone I know, Getty demanded 7 thousand odd quid for 4 images and then refused to prove exclusive ownership or how they worked out the amount, but just threatened court and refused to negotiate, you reckon they should just pay up?


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