The Settlement Demand Letters from Getty so far received by companies demand payment and say that if you pay the amount demanded now you can avoid being sued. The language used suggests that they’re legal when in fact they have probably been written by a Getty copyright department letter writer. Many individuals and companies have paid up without question but many others haven’t. To see Getty Image’s level of aggression over lost revenue for copyright infringement take a look at some of the letters here.
What is a Settlement Demand Letter?
A Settlement Demand Letter can be two things: an order to "cease and desist", which is an invitation to remove the unlicensed image before a more formal demand to assert copyright by suing you or taking you to court. The second Settlement Demand letter is like the Getty one, an "invitation" for you to come to an agreement with Getty, by paying a lump sum that is far greater than the value of the image license, and in return you won’t be sued.
Should I "cease and desist"?
The moment you’re made aware that you’ve infringed copyright you should remove the image(s) and notify the copyright holder that the image(s) have been removed. Even though ignorance is no defence in law, if you can prove that you removed the image immediately you were made aware you’d infringed copyright, a court of law is likely to be more lenient in the knowledge that you removed images that weren’t licensed for your use once you realised or were officially notified.
Does removing the image stop legal action?
Removing the image does not stop legal action relating to past use, but it does mean you’re no longer infringing copyright. Getty does not make clear that even if you pay their demand you are still not given permission, rights, or a license to use the image again, or in the future, you have simply paid a fine for violating copyright law.
Should I apologise?
You should apologise for your oversight and offer an explanation. Resist getting angry or threatening with huge organisations like Getty first because the likes of Getty will not be threatened by many individuals or organisations and second they will probably be documenting rude, threatening, or unprofessional behaviour ready for the court hearing! Check the price for the copyright license for the image(s). If the letter is asking for a lot more than the licence fee for the image(s) point that out and then try calmly to negotiate for a more reasonable amount. Do not acknowledge guilt, but state that you were not aware of the violation, but since having been made aware you have removed the image(s).
What is copyright?
Getty and others companies such as iStock provide digital images that can be used across all media, analogue, print and digital. The copyright (UK Copyright Designs and Patents Act 1988 or CDPA) for the digital image, scanned image, or negative image belongs to the photographer, Getty or some other company acting as the photographer’s agent if it’s still in copyright, and as this is how some people earn their living it’s fair enough to expect to pay a license fee for use. Therefore you should check the copyright of any image before you use it both to protect yourself legally and to protect the reputation of your company. (Note that this also applies to copyrighted text used over five lines (around 50 words) or any lines of poetry you use if they are still in copyright; poetry is another very sticky area where tough copyright rules apply and copyright infringements have been taken all the way to the High Courts).
Be aware that although some image libraries don’t appear to charge for the images they supply it’s still a good idea to read the small print, because some consumers have been deliberately persuaded that there’s no copyright to consider when in fact there is.
What should I do to protect myself against infringement of copyright?
- If you hire a web company to develop your site or another company to publish a brochure, book or magazine or make a video or film, insist that all the images or texts used are licensed to you. Getty specifically requires that an image is licensed to you or your company and not to a developer or other third party.
- Keep together all the paperwork and licences relating to publication of the image or text.
- Check and be aware of when the license expires.
- To be totally safe, take your own images and start creating your own image library.
If you publish any image or text that is in copyright, in whichever media, whether book, magazine, film or video or website without the appropriate license, even if you did not know because someone else did the work or posted the image, it makes no difference in law because ignorance is not a legal defence. Bear in mind as well that this includes removing the file(s) from your server and if it’s analogue or print media you must pull the product from the shelves as a fast as possible.
What is our advice?
Resist the temptation to use images or text without first checking the copyright status. Always pay the fee for the license for use if appropriate. Keep the documents and licence. Lastly, as belt and braces, take out Professional Indemnity Insurance, which will cover you in the event of either oversight or foolishness.