I designed a website for my client then had a flash intro outsourced per the requirements of the client through Elance.com to an Indian company. I did huge favors for this client in giving them beyond value pricing and they never paid me for my additional work, which I was ok with because I guess I’m too passive to pursue payment.
Anyways Getty Images is sueing them for $1200 for using a tiny “eye ball” image in the flash intro that apparently is not licensed use of the image.
My former client tells me that if I don’t have proof of purchase that they will require me to pay the $1200 in damages that Getty is asking. As if the Indian company has proof of purchase. I don’t have these funds and I don’t hold myself responsible.
Standard Disclaimer: I’m not a lawyer, have no idea of the laws you are under. The below is just my opinion and not necessarily something you should act on. These are only hypothetical options. Always consider consulting an attorney before taking legal action.
A copyright is a copyright whether it’s one image or 5,000 images (although for 5,000 they’d be asking for more money).
As far as options, if you acknowledge that the photo was used without permission and you are located in a jurisdiction where the copyright matters, you’ve got a few choices.
You can try to go to Getty and get them to reduce the claim and pay that.
You can stick it to the client under the presumption that they knew the work was outsourced and the dispute is not between you and them.
You an ignore them all together and hope it goes away
You can go to elance and/or the vendor and go after them for the money (and possibly more)
You can try to split the cost with the client
If you don’t agree that the image was used without consent then you’d want to consider contesting this or instructing the client to do so.
I don’t really see what your options would be other than paying the $1200 to your client. If the image was stolen and you sold it to the client, you are responsible for their damages. You could sue the Indian company for damages yourself, but that could be a real headache.
As for the ‘beyond value pricing’ that doesn’t really mean much except that you undercharged them and then screwed them by outsourcing the design to a company that cheated. Doesn’t sound like very good value to me.
You are making way too many judgements that you know nothing about. I designed the website and the flash intro was outsourced with the company’s knowledge that it is being outsourced because I don’t do flash intros.
I am trying to level with the client and have provided them with the Indian fellows info and offer them free work for my part in this. Bottom line is that Getty Images has a beef with them and not me but still I want to make it work out for everyone.
Did the client pay you for the job and you outsourced it (with our without their knowledge)? Even if they knew that you outsourced it, if you are the one who arranged the work, procured the flash with the stolen graphic, and provided it to your client for compensation based on the assumption (of both you and the client) that you were selling them a flash animation that had been created on their behalf, then you are responsible.
Are you saying that the client outsourced the work and paid the Indian firm themselves for the work? If so, why are they claiming damages from you?
Maybe I know nothing, but it seems simple enough to me.
Just as Ted stated I’m no lawyer and I agree with him you should consult an attorney in your area. Two things to look for from this legal adviser is to make sure he has experience in internet law and copyright violation.
Frankly, I would not proceed any further with your client until you seek advise from your attorney.
I admire your integrity in wanting to do the right thing for your client, but you may be digging a deeper hole for yourself by offering or acknowledging fault.
If you outsourced it and believe it’s your liability (after discussing with an attorney of course), maybe the better answer would be to just take the troublesome image out of the flash intro? Noone is being forced to use it, right? So there should be the option of not using it altogether and ending the “infringement” without going through the courts. After all, it was unintentional. Talk with your lawyer, you (and your client) may have other options besides just opening the wallet. The Indian company that made the error should be able to fix the mistake and provide you with a “clear” product for your client. This is the path I would go… try to put out the small flame before it becomes an inferno. Just my opinion though. But like others have said, I wouldn’t do or say anything until getting with a lawyer first.
IANAL but from my understanding, if you consult with one, especially one who specializes in International Intellectual Properties, you’ll spend far more than the $1200 your client demands. Moreover, from my understanding, if your client has to bring suit against you, he’ll probably want to recoup any legal expensive he has incurred because of the Getty suit as well as those in suing you. So, if he wins, you’ll be out much more than $1200 dollars.
You probably aren’t going to get anything from the designer who stole the image.
I think your best solution is to pay the $1200. If you can’t get the cash, try to work out a payment plan with your client.
Then do hire an attorney to write a contract for you that includes an indemnity clause and makes it clear what your intellectual responsibility is in future contracts with other clients.
Getty doesn’t care about whether you remove the image or not, judging from the amount of lawsuits they’ve threatened and filed I’d say they are quickly making lawsuits a large amount of their business plan.
It’s a fairly standard business plan for IT companies and now it’s moving into the non-IT realm.
I agree that the best solution (only option, perhaps) is to pay the $1,200 and get on with life. At least, it looks that way based on what the poster described.
But, I don’t think that even the best attorney could write a contract that indemnifies a vendor for this kind of thing without getting into some really confusing areas. For a vendor to say, ‘I won’t warrant that the work my sub-contractor do will be legal for me to transfer to you’ really makes things confusing, and even if a client signed that it would be so hard to figure out what happened, etc. In court, there are a lot of circumstances where the liability for damages in this kind of situation will be placed along the money trail - if you collected for a job and sub-contracted it out (even with the clients knowledge) then you are accepting considerable responsibility for that job even if the client signed your indemnity clause. Also, it’s tough to enforce contracts that require clients to release too much of their protection in some circumstances.
It would be interested to see what a proper attorney would say about this! I think the best route is to pay the $1,200, then focus on working with more trustworthy vendors (not unknown entities on Elance) and avoiding this kind of thing in the first place. But, that’s not so simple either
I totally agree Dave. Such a contract would be difficult to create. However, consulting with an IP Attorney can help anyone know what they can and cannot do and where their liabilities are.
If such an indemnity clause can’t be created than at least an attorney would advise you of such and possibly suggest ways that you can protect yourself.
I think Getty has also been sued for infringement themselves. LOL
Well first they need to prove the image was registered with the copyright office before the “infringement”. Just paying their strongarm fee won’t necessarily cure the problem either. So if they are entited to the license fee, negotiate for the complete ongoing use, pay for the license and move on with the lesson learned. But nothing should be done at this point without an attorney.
Getty has a system that scours the internet doing screenshots of websites, then compares every screenshot to every site that it finds. They spent millions on this system. They also spent a lot of money making sure that they had a great documentation system which allows them to quickly generate documentation to prove that they own copyrights to any of the images that they rights-manage. Then, their legal team worked out a way to send notices out when they suspect an infringement that is geared towards sailing through the courts - they usually even include the screenshot that they took and the date that they took it in the warning letter. The amount that they ask for a varying amount that is based on the predicted revenue/damages that they calculate (obviously in their favor) based on their interpretation of ‘reasonable expected revenue loss’.
There are already hundreds of cases on the books where Getty’s system has worked, and it’s being touted as a model for IP infringement protection all over the world.
If you DID use the image and you don’t have a REAL legal theory that you can use to prove why you don’t have to pay it, it’s unlikely that you’ll win a case against Getty on this one.
Of course, you could spend money trying to bog down the case in court and lose by attrition, but that’s gonna cost you way more than $1,200 and since Getty seems interested in creating case law that benefits them you may not even win.
If you actually didn’t sell a stolen image to your client, perhaps you should fight it. But, why would you get an attorney otherwise?
I thinks we’re getting off track here. Apparently the OP’s client has been issued a notice by Getty and they have either agreed to pay it or have already paid it. From what I understand, they want to be reimbursed by the OP.
So, it doesn’t matter what Getty does or doesn’t do. What does matter is the designer’s responsibility to his/her client.
I agree that the best course is to bite the bullet and reimburse the client. Of course, an attorney may disagree. However, I believe that, in the end, it will cost far more than $1200 to find out if the OP is legally bound to reimburse the client.
IANAL. I assume by the wording of the original post that your client has received a demand for $1200 for unlicensed use of an image from Getty Images which they have not paid because they are unsure whether or not a license was purchased by you as the person who would be responsible for ensuring that any such image was licensed. If I was to find myself in a similar situation I would take the following course of action.
Establish from your sub-contractor in India if a license was purchased; if not, why not and what lead them to believe that they had the right to use the image.
In the absence of any information that would lead you to believe that they acted within copyright and the law; remove the image from the site.
Keep a copy of all communication with all parties to establish that you did not knowingly infringe copyright.
Send this to Getty Images pointing out that you were unaware that an infringement of copyright had taken place and that you have taken all possible steps to redress the situation. It is important to point out that at all times you acted in good faith.
The burden of proof is on Getty Images to prove that you have infringed copyright and prove loss or damage in order to pursue a claim against you or your client through the courts. They also have to prove that they had ownership of the image at the time and that you had no reasonable cause to believe that you were allowed to use it. Unfortunately infringement of copyright is infringement of copyright knowingly or otherwise, however it is important that if it gets to court that you can establish that any infringement was by default rather than by disregard and any damages will reflect this.
I suspect that if you go through this procedure Getty Images will still pursue their claim but for a lesser amount.
Other posters have already pointed out the necessity of having indemnity clauses written into your contracts but realistically these will not work in this type of situation and a better way of protecting yourself in the future is to insist that all graphics from sub-contractors are accompanied by copies of licenses and proof of purchase or a signed affidavit that these are original works.
Getty Images are not going to go away and your liabilities may very well snowball if you do nothing. On the other hand Getty Images have to be seen to be acting reasonably and it is hard to see how any court would uphold a claim for $1200 if you can prove that you took immediate steps to redress the situation once you had established that a copyright infringement had taken place.
I didn’t really read it that way. It looks to me like they got the notice, informed the OP, and the OP is looking for ‘options’ to paying the bill.
The problem here is that Getty has carefully chosen the amounts that they claim to fall under the ‘ordinary and reasonable’ calculation that the court expects to be used when someone claims damages for this kind of thing. It’s tricky to predict the amount that they would have lost on the original sale plus the devaluation of the asset that occurs when it gets used in some ways. They also built the cost of their fraud-prevention system into that cost, a concept that was challenged in a class action suit that didn’t get far.
There are examples of people winning these cases, but it’s almost always because Getty couldn’t prove that the images were publicly displayed in the way they claimed. The fact that someone took the image down right away when the letter came would probably not influence the judge to change the damages, as far as I can see. In a civil matter like this, damages are determined by actual/material damages and if you read the Getty letter they specifically say that they are claiming material damages and lost revenue as opposed to punitive damages. Their warning letters are pretty well thought out.
If you are going to fight it, fight it’s legitimacy rather than just hoping for an arbitrary break. A client of mine spend $300 on a lawyer to be told that it would cost many thousands of dollars for the chance (small chance) of getting out of a $1500 Getty fee.
