If you receive a Settlement Demand letter from Getty Images asking for payment for using unlicensed image(s) on your website you should take it seriously but don't panic. The company has a very large team of professionals dedicated to copy infringement, and employs robots to search for images and even parts of images or photographs that are being used on the web by a party without the appropriate permissions licences.
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?
If you have been sent a settlement action letter from Getty images, you probably have received two separate legal letters:
- A cease and desist order
- A settlement offer asking for money.
First one, A cease and desist letter is an invitation to remove the unlicensed images and photographs from web. The second letter, which is Settlement Demand letter, is an "invitation" for you to come to an agreement and pay money to Getty, and in return, no further legal action will be taken against you by Getty.
Should I "cease and desist"?
At the time when you receive a settlement demand letter from Getty, and you get to know you've infringed copyright, first thing you should do is to remove the images uploaded by you on the web and notify the copyright holder about the removal of unlicensed or copyright images.
Even though ignorance is no defense in law, if you can prove that image were immediately removed from the web before you were made aware you'd infringed copyright, a court of law is likely to be more lenient towards you in the knowledge that you removed images that weren't licensed for your use once you realized 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 licence 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. Check the price for the copyright licence 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 licence 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 design or development agency for your website or another company to design brochure, book, magazine or video, make sure that all the images or texts used by them are licensed to you. Getty specifically requires that an image or photograph 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 licence 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 licence, 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 using the images and text that are copyright protected and you do not have a licence to use them. Always pay the fee for the licence for use if appropriate. Also, you must properly maintain all the documents & licences. You can also protect yourself and your business with Professional Indemnity Insurance which will cover you in the event of either oversight or foolishness.