In that case the defendant put forward the argument that MicroS’ was only entitled to damages for 45 copies and consequently the damages were limited to 45 copies because of the innocent infringement.
In any event where does the case cite s.97? Therein lies the problem –there is no UK case law that specifically deals with s.97 or least none that I could find.
Getty are asking for $1000 (approx. £525) per infringement. In an earlier post I explained how this might be easily be considered extortionate relief’ in a UK court of law in light of their standard price structure for countries outside the UK
Licence details
Use: Web - Corporate or Promotional Site
Size: Medium - Up to 300x250 pixels
Placement: Home page
Start date: 1 Jan 2007
End date: 1 Jan 2008
Territory: China
Industry: Fashion / Textiles
Exclusivity: No Exclusivity
Contact us for exclusivity
Price: £ 15 GBP
In my case and possibly everyone else on this forum, the web-sites are not merely accessible in the UK alone – they are accessible from anywhere in the world. In accordance with the other UK authorities on this issue the courts have to look at the global picture rather than confine it to the UK price structure. V&S Vin & Sprit Aktiebolag AB v Absolut Beach Pty Limited The worst outcome will be a tribunal will meet the actual market value as somewhere between the Uk price of £525 and the Chinese price of £15. At best they will consider the UK competition laws and completely ignore the Uk price as it is clearly places Uk business at an unfair competitive position in a GLOBAL market.
All this assumes they ignore s.97 which if they do will leave the door open for anyone to run a scam such as the one suggested by my blog.
BTW The drummer is a personal friend in a country not party to international copyright agreements (now there is one for the lawyers) however I take your point – sending everyone a copy of a signed model release is too much hassle. One of the points of the blog was to emphasize just how easy it is for innocent people to be sued and i have added that statement to the blog. (or will do in the next 10 minutes)
thanks Sally for all those links to free, public images.
Simon i now have a signed model release so i have left the image as it is but appreciate your advice. I’ll feed you with a ringside commentary of the ground-breaking GettyImages -v - danny20 (should it ever happen.)
Just wondering why the problem of the Picscout scan is being ignored in favour of this copyright issue?
Picscout’s bot is spoofing the user-agent making it a ‘bad robot’ and therefore preventing website owners from using the robot exclusion standard. What are the legalities of them ignoring the rules you set for access to your property? Is that hacking? Is that theft? Are they financially responsible for accessing your property in such a way?
I know there are photographers here trying to defend their trade, but there are issues here other than just copyright, and those copyright discussions shouldn’t overshadow them. These issues affect every website owner on the internet that is unknowingly being scanned by Picscout (and paying for the privilege).
Also please try to remember that while we are all intelligent people, we are not trial lawyers, so let’s try to keep the legalese (not to mention our emotions/beliefs) in check, ok?
hi Dan,
the problem is that the legalese is at the core of the issue. Few on this forum can afford copyright lawyers and therefore any form of legal input would help.
How many people realsise that Copyright does not subsist-
(a) in a literary, dramatic, musical or artistic work … if it was first published-
(i) before 1st June 1957 (commencement of Copyright Act 1956[2] ), or
(ii) before 1st August 1989 (commencement of Part I of the Act) and at the material time (as defined in section 154(4)(b) of the Act) the author was not a relevant person;
Some of Gettys images were taken in the US by a US photographer (not a relevant person) before 1989, which explains why Getty are so reluctant to provide evidence of the date the image was shot.
As regards Picscout yes it is hacking and yes it is a criminal offence. Query how do you prove it?
(Actually, I was trying to diffuse the situation and get people to realize that they need to calm down and look at things differently before this thread gets locked.)
Just been looking into my mad ramblings from last night. The Computer Misuse Act of 1990, says: “A person is guilty of an offence if: … b) the access he intends to secure is unauthorised…” [Source]
Does Picscout actually provide advice on what should be entered into a robots.txt file to prevent them accessing websites?
If not, couldn’t you just add the name ‘picscout’ to your robots.txt and if you get an invoice in the future then does that mean they’ve committed a criminal offence? Could also use server logs to back that up.
I’ve read them and will likely implement those sorts of blocking (appreciate you pointing it out), but in my opinion that’s only a short term fix. I am more interested in somehow making Picscout act responsibly.
If they were playing by the rules then all people would have to do is block their user-agent when they notice excess bandwidth usage. If people start reporting them and their clients to the police’s computer crime unit, then that will be a blunt wakeup call to force them to behave in a responsible manner.
Don’t have the proof since the logs are long gone, and to be honest I avoid that sort of thing unless I really have to - due to overheads. I just enjoy running my website, and begrudgingly declare it as a business to cover the running costs (hence the reason I get annoyed about them leeching without repercussions)… think I’ll leave this thread and hope the situation fixes itself.
the Computer Misuse Act 1990 is a criminal offence. Surely the only way it would help us against gettys claims would be if Picscout were actually prosecuted and found guilty. Then if Gettys evidence was founded on Picscouts findings that evidence could possibly be ruled out as inadmissable as it was obtained by criminal means.
To prosecute Picscout it would take more than just one us wandering into the local police station - any ideas?
BTW does anyone have copies of getty images license fees from 3 or 4 years ago as i’m told their prices then were less than a third of what they charge now (for the same photograph).
Picscout are using a bot which gains unauthorized access to your server.(particularly if you have stated is forbidden on your site either in the Robots.txt, meta-tags or even in the text on a page) However Getty are producing screenshots of your pages from a normal browser but as has been said before anyone could PS a screenshot. So Getty need to corroborate that screenshot by presumably bringing Picscout into the case- maybe its at that point you can start counterclaiming for bandwidth costs and unauthorized access.
BTW Simon take a look at s4 of the 1988 Act which states that a photograph is an ‘artistic work’. Then look at s1 which defines copyright as subsisting in ORIGINAL … artistic works.
Originality and creativity is essential for copyright. Since every photograph is a copy of the image it represents in a sense it can never be an original e.g. a tourists point and click pic of blackpool tower is not original. Some photographs perhaps can be considered original if they are artistic using lighting, unusual angles and carefully arranged subject matters.
Originality of a photograph is of crucial importance as it is the level of originality that will govern whether a photograph is protected by copyright. A photograph that is unoriginal and does not attract copyright may be copied with impunity. This is why I considered the few crappy images of baby clothes not to have copyright and why I intend to rely on s.97. maybe this point could help those on the forum who have images such as shopping carts, simple graphics or images that you would expect a million tourists to take each week.
Sally that’s a interesting point about originality but I don’t think it helps many as the majority of the images getty are claiming for I assume will have some artistic merit.
As for s.97 it only concerns belief that copyright subsisted in the work. In the 1992 case of LA Gear Inc v Hi-Tec Sports plc the court of appeal said that the test to apply was an objective one - that is whether the reasonable man, having the defendant’s knowledge of the facts, would have believed that the copy was an infringing copy.
Based on case law I found I think s.97 will only apply where you have good grounds to believe:-
image is out of copyright because of its age
image is not of a character in which copyright can subsist (the point you made about originality)
The image is of obscure foreign origin
Image falls into the public domain
The case law I have read suggests that s.97 will NOT be a defence where:-
1.a person suspects copyright exists but makes a mistake as to the owner of the copyright. Tate v. Thomas (1921)
2. That he held an honest but erroneous view of the law (Pytram Ltd v. Models)
3. He made no inquiry whatever as to the source from which the work was derived (Kirk v. Fleming (1929))
I think the only reasonable way forward with a s.97 defence is to show you thought it was in the public domain e.g. you have a cover disc which states it is in the public domain.
What intensely annoys me is that I am sure when I looked at Getty’s site 3-4 years ago, firstly it said the images were royalty free which to me implies it was in the public domain and secondly when it did refer to a license, the cost of that license was about £70 for the same image they now say is £700. It’s a scam as illustrated by my blog.
Finally there are other defences which few have mentioned:-
Fair Use
Incidental inclusion
Debarred by acquiescence or delay
Precluded by the EC treaty
Exhaustion of rights
Image maker not a qualifying person to be entitled to UK copyright
Image created in a country that signed the universal copyright convention (UCC) where images without the c symbol are not protected.
Not to mention all the other points raised on this forum about tax issues, Company law, illegal acquisition of evidence, malicious threats, disability discrimination, false accounting etc etc.
Do you think we could use archive.org to look at Getty’s site 3-4 years ago and see if we can find the image in question - whether it was royalty-free?
I might do this tommorow and see what I can find
it a good idea although i suspect pages written in ASP will take a long time to display.
I will also give a shot as i’m convinced 3 or more years ago the same images on their site were either free or in the $60 - $80 region.
firstly it said the images were royalty free which to me implies it was in the public domain
Royalty free means that you can buy a license for a one off fee and then use that item, within the terms of the license, without making further payments (ie. not having to pay monthly royalties for usage).
Many people assume that Royalty Free means help yourself. It’s the word Free that does it.
I know you are correct with the current defination of Royalty free which is indeed now stated on Gittys web-site however i’m convinced that about 4 or more years ago there was a completely different defination on Gittys site or before that Photodisc’s site or tonystone.com which basically sadi they were free and public.
Maybe i’m wrong but i just wondered if anyone remembered any details from the past.
What does ‘royalty-free’ mean?
Royalty-free pricing is based solely on the size of the product you need, not the specific use. You don’t have to pay any additional fees on a use-by-use basis. Once you purchase a royalty-free product, you may use it multiple times for multiple projects without paying additional fees. Royalty-free images offer creative professionals an alternative to right-managed imagery – without sacrificing quality or creativity. Royalty-free products provide a solution for every budget, with few usage restrictions. Once you pay the fee for a royalty-free product, you can use the images as frequently and creatively as you’d like. (Pornographic, defamatory, libelous or otherwise unlawful use of any image is, of course, prohibited.) Royalty-free products are identified by an (RF) notation next to the identification number.
This is from 30th June 2002
What does “royalty-free” mean?
Royalty-free pricing is based solely on the size of the product you need, not the specific use. You don’t have to pay any additional royalties on a use-by-use basis – Getty Images has taken care of that for you. Once you purchase a royalty-free product, you may use it multiple times for multiple projects without paying additional fees. (Pornographic, defamatory, libelous or otherwise unlawful use of any image is, of course, prohibited.) Royalty-free products are designated by an (RF) next to the identification number.
Here’s the link to the archived pages for the FAQ page. After this it changed to the page they have currently