Daily Archives: May 28, 2009

“Getty” yourself a Copyright Lawyer

Websites are fast becoming the true “shop front” of many businesses and are often the first port of call for potential clients, meaning that it is now more important than ever that they make a good impression. Most start-up and existing businesses will set aside at least some of their budget to retain a third party marketing or web design agency to start establishing a presence on the web if for no other reason than to allow search engines to pick them up when users look for a certain service in a certain area.

 

Such as “removals” in Manchester or London, both of which are home to offices of JA Coles, a removals and transport contractor who is being sued by worldwide digital image providers Getty Images for copyright infringement over the use of a photograph on the JA Coles Website which was licensed to Getty for use by a Canadian Photographer. The claim has been issued in the High Court and seeks damages for, amongst other heads of claim, payment of the commercial royalty for use of the image, compensation for the costs spent in uncovering the unauthorised use and “loss of credibility”. 

This kind of case is nothing new, but it’s a very timely reminder of how even fairly anodyne imagery is protected by copyright, how that copyright can be used to generate income, and how far businesses will go to ensure that income continues to be generated.

Under English Law, Copyright in a photograph will always belong to the photographer in question unless that photographer has made other arrangements or is taking the shot as part of his duties as an employee. Being the owner of that copyright means that you can restrain other people from copying or using the image without your permission, subject to a number of very limited exceptions. This is how professional photographers continue to generate an income.

In this case, the photographer has licensed the photograph to Getty, who are a huge worldwide “image bank”. Getty will, at any time, have hundreds of thousands of images under license from their photographers, ranging from celebrities or “stock” pictures which will often appear in marketing materials, such as businessmen shaking hands, a cup of coffee on a boardroom table and so on. Getty will then use its massive resources to licence the images for use by third party customers and pay a royalty to the original photographer. This is now a very big and lucrative business for Getty as more and more businesses look to develop their brands through websites and often don’t have the time or skill to produce professional imagery of their own. Of course, if an image is simply cut and pasted from the web and used on another website, then Getty’s and the Photographer’s revenues stream is going to be abruptly cut off.

Getty has a very strict policy on the use of their imagery without a license or permission and employs a number of in-house lawyers to take action against any infringers. Usually, cases don’t go any further than a stern letter and a payment of the appropriate royalty (which is what the Court would award in damages), but here Getty seem determined to make an example of JA Coles as a deterrent to other businesses contemplating taking a similar short cut.

Use of unlicensed imagery may save you time in the short term, but in a period of economic decline where IP rights are being protected more and more jealously, the only way to protect yourself is to make sure that you have the rights to use all of the imagery on your website. There aren’t may defences open to you and the most widely used, innocent infringement, can only be run in a very limited set of circumstances in cases where you can demonstrate a genuine belief that there was no copyright in the image in question (usually because the period of protection has expired).

Additionally, if a Web Design Agency or other third party has put together your website, their terms and conditions may contain an indemnity, meaning that, if the site which they produce contains unlicensed imagery, then they can’t be sued for infringement.  You should always ask them to provide details of all of the images they use as well as invoices for licence fees paid.

We are likely to see more and more of these cases. The bottom line is, if you’re going to use an image, either make sure that it belongs to you or make sure that you have the right to use it.

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