Private photographer taking possible legal action
So sorry but way to many pages to read and find the answer here.
What is the bottom line. I am a web design / webmaster. A local photographer who took photos for my client then burned them to dvd, gave them to the client in turn client giving to me to crop and put on their web site I builit for them. Photographer is seeking payment for his work and may hold me liable...
Photographer emails me and says "I am the copyright holder and have not licensed the images for any usage at this time pending completion of the transaction. If after xx the transaction is "not" complete then I will request that you remove the images from the site within five days or I will consider actions that focus on your company's unauthorized usage of my copyrighted images."
When I initially put the images I had no idea if they were paid for or not of course., After reading about Getty, Getty emails the domain name owner and tells them to pay which I mentioned to this photographer, they don't send a notice to the webmaster for an invoice. He says legally I am the one who put the images up so he can come after me. I told him it's the clients website and domain and the client owns that and it's the clients responsibility to remove those items.
What would you say or do if you were in the middle, yes I know take the images down but what I mean is how to handle this with my client as I am not going to jepordize my relationship as I have recurring income with them and also legally want to do the right thing too...
Guess I need to add a clause in my contract that if a client sends me content or images they must hold the license to that and if I am contacted that they are not the licensed owner then I have the right to remove that item. Of course if I am not the webmaster anymore I would say it's reasonable that I am not legally responsible and cannot remove those items anyway.
The Perfect Third Party Defense
"What would you say or do if you were in the middle, yes I know take the images down but what I mean is how to handle this with my client as I am not going to jepordize my relationship as I have recurring income with them and also legally want to do the right thing too...
Guess I need to add a clause in my contract that if a client sends me content or images they must hold the license to that and if I am contacted that they are not the licensed owner then I have the right to remove that item. Of course if I am not the webmaster anymore I would say it's reasonable that I am not legally responsible and cannot remove those items anyway."
Sounds like the tog is having a hard time getting paid or even reaching agreement with the client. If tog's paperwork is together, there will be a clause in the invoice to the effect: "No usage rights are transfered until fees are paid in full."
If your paperwork is together with your client, your T&Cs will have a clause saying something like: "You warrant that all materials provided by you have been properly licensed, that use by my firm in carrying out our assignment does not infringe the rights of third parties."
It appears your client jumped the gun, and the tog is leaning on you in hopes of forcing a settlement. It seems that the extent of your responsibility would be to notify the client of the contact and asking for instructions.
This might be your position:
"I have been contacted by ____, threatening legal action over use of _______. I must remind you that it is your responsibility to insure that materials provided for use by me are properly licensed for the purpose. (Quote T&C if applicable.)
"Please advise me. I should point out that the images have been on your site since mm/dd/yy, and are, technically 'Infringed' until settlement is made with the Copyright owner or agent. Taking them offline won't alter this. Should I take them down or await advice of settlement?"
If your present T&Cs don't fully immunize you, you might include something like: "I cannot accept responsibility for the actions or omissions of others."
The tog has no meaningful quarrel with you as a third party service provider. (Had you provided the images, you'd be on the hook, but since you didn't, you're in the clear, mho.)
Tog, like many at this list, is making it up as they go along, with no competent legal advice. When and if they retain a real IP lawyer it will be to make formal demand of your client, just like Getty's or Corbis': "Pay us (normal fee x 3 or so) now, (and make the use legal) or pay us more later."*
If and when tog gets that far and still can't get settlement, the next step is a lawyer's letterhead advising of intent to file suit unless settlement is made; generally including the request for the contact info for "Process of Service".
You might be included in this round, at which point you might need a lawyer's (one hour) letter to establish your third party innocence defense. In the USA, a valid Innocence Defense would have the effect of capping any damages at a few hundred bucks; meaning effectively that any settlement from you can't possibly cover the costs of winning.
You'd only be in on this as window-dressing/tree-shaking, if at all, and probably wouldn't last into the actual suit filing, if any. Many matters are settled at this point, unless a profit driven lawyer is calling the shots, and/or there's a six figure settlement at issue.
Actual filing escalates everybody's legal costs exponentially. Only rarely are there facts in dispute which actually reach trial. Many matters are settled between lawyers (overseen by a judge) just before a trial date is reached.**
cmec, I don't think you want to take any action beyond (written formal letter, not email) informing your client of the situation and refusing any responsibility or liability, politely as you can. I don't think 'an abundance of caution' requires anything more.
If you were to act by taking the images down without client's written instruction it might be interpreted as an admission and acceptance of complicity & responsibility.
Again, I'm only licensed for Latrine Law. Don't accept anything I say as other than fragmentary, imperfect understanding. I've been through some of this many times as a plaintiff, but other aspects are pure heresay and conjecture. Check everything with a proper solicitor, preferably one without a profit incentive to raise unrealistic expectations...
* BTW, C&D (Cease and Desist) letters/orders are very seldom used in Infringement Chasing. In order to file one of these, the Plaintiff needs put up a substantial Cash Bond, to cover the lost income and costs of compliance in the event Defendant wins. (My fragmentary understanding).
** Tristana, et al, Several lawyers quoted here have 'ball-parked' the cost of defending an IP suit as US$30k. I doubt they included the expense of actually 'Going to Trial'. A good question for that law firm who several here apparently have retained. A Jury Trial in any of these cases would be Day Dreaming; fodder for a reality TV show, 'Bambi vs. Godzilla'?
BTW, T: Some attorney advised you to delete a slew of posts, made it into the Guardian article, et al. Some of the deleted posts were quoted elsewhere and no doubt exist in the big DB in the sky.
Weren't the deletions kind of like High Lighting potentially actionable speech? Does your counsel also advise you that the archives of this site are probably subject to subpoena, or accessible through other archives? Does the same firm lead you to expect a Jury Trial? Oh dear, what to wear...
All should be very careful whose advise to act on, myself included.
Pardon for straying from the thread. Good luck, cmec!