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Violated Copyright Law — Now What?
An anonymous reader asks: "I am US-based and have recently been doing part-time subcontracting work for a friend in the UK who runs her own small marketing firm. She sells a complete branding/identity plan and if that includes a web site refresh, she calls me. The clients do not know who or where I am, or even that the work is being subbed. Like many designers, I often use Corbis and other photo merchants to mock up layouts for review. It is legal to download images (comps) from Corbis to use offline for the this purpose. If the client likes the design/images, I get a quote from the photo vendor and the client has the option to purchase. If the price is too high, which it often is with Corbis, I turn to less expensive or free alternatives." The problem comes when the site goes live and images from Corbis (or others of its ilk) aren't replaced, which is an honest mistake as long as it doesn't happen excessively. How does one handle isolating the customer, fixing the problem, and paying the proper fees (professional legal consultation here goes without saying) without everything getting blown out of proportion?
One of her clients, for whom I recently designed a site, just received a $25,000 invoice from a law firm in London representing Corbis, who claimed their content was on the client's site. The client of course was frantic when they received the bill and called my marketing friend, who called me. I investigated and sure enough, there were images on the site that were rightfully the property of Corbis, which I put there. In this instance I neglected to swap out the comps with legal images I purchased for the client from another online source before I made the site live. As a designer I respect content rights and did not, would not, maliciously steal images. The client and my friend had no idea.
I moved quickly to correct the situation — scrubbed the site and looked through other clients' sites to make sure nothing else had gotten through. I called Corbis and told their legal department what happened and they told me I would have to deal with the law firm, who handles "all our overseas affairs." I then sent a certified letter to the law firm telling them what happened in an attempt to exonerate the client, and by default, my friend. That was today.
I quoted the images in question on the Corbis site and the total would have been about $800. I did my due-googling and in the spectrum of copyright infringement, I want to believe I'm closer to the speeder than I am the serial-killer. Other photo houses (Getty) send out cease and desist letter and it's done. There is mention of similar situations on some forums, especially in the UK, but I can't seem to find any precedent as to what my fate might be. Does anyone have any idea? I made about $1,000 for the site about a year ago, and as much as it would pain me, would be willing to give that up to make this go away. However, something tells me this is going to get ugly."
One of her clients, for whom I recently designed a site, just received a $25,000 invoice from a law firm in London representing Corbis, who claimed their content was on the client's site. The client of course was frantic when they received the bill and called my marketing friend, who called me. I investigated and sure enough, there were images on the site that were rightfully the property of Corbis, which I put there. In this instance I neglected to swap out the comps with legal images I purchased for the client from another online source before I made the site live. As a designer I respect content rights and did not, would not, maliciously steal images. The client and my friend had no idea.
I moved quickly to correct the situation — scrubbed the site and looked through other clients' sites to make sure nothing else had gotten through. I called Corbis and told their legal department what happened and they told me I would have to deal with the law firm, who handles "all our overseas affairs." I then sent a certified letter to the law firm telling them what happened in an attempt to exonerate the client, and by default, my friend. That was today.
I quoted the images in question on the Corbis site and the total would have been about $800. I did my due-googling and in the spectrum of copyright infringement, I want to believe I'm closer to the speeder than I am the serial-killer. Other photo houses (Getty) send out cease and desist letter and it's done. There is mention of similar situations on some forums, especially in the UK, but I can't seem to find any precedent as to what my fate might be. Does anyone have any idea? I made about $1,000 for the site about a year ago, and as much as it would pain me, would be willing to give that up to make this go away. However, something tells me this is going to get ugly."
The little () about consultation is your answer. You need to talk to a lawyer.
In the future you might want to place the text "FRO" (for review only) or something like that over all the images that aren't licensed. That way it's clear that the images in the mockup are not the ones to be used for the final site. I picked this up from some colleagues when I worked in print. The text was placed over all mockup images and was faint enough that it wouldn't interfere with the idea, but clear enough that anyone could read it and notice it.
Slashdot: Failed Car Analogies. Amateur Lawyering. Anecdote Battles.
Apparently /. is low on pageviews for the month so the editors are looking for a thousand IANAL (half of whome will give legal advice anyhow, a further half of whom are unable to comprehend that US law isn't universal (not for wont of trying.))
I don't read ACs: If a post isn't worth so much as a nom de plume to its author then I wont bother either.
Well, it wasn't exactly useless when the poster snarfed the content from Corbis and used it to sell a site, now, was it?
You need to read closer.
It is not the site designer's site but his design work. Not only that its work he/she sub-contracted for the friend. The designer can't ignore it or it just becomes a bigger financial and reputational headache. They can end up with not only one judgement to pay for but the cost of three judgements and accompanying law fees, not to mention gaining the bad reputation of not standing behind their work.
The right way is to get a lawyer and arrange a settlement suitable to all parties concerned. This will protect their and their friend's reputation. Of course, if they can't afford the settlement it brings up another problem. IANAL and designer in question needs to see a real one. IMO as part of the settlement they should request that Corbis send notice to the company the site was created for that the matter has been handled to their satisfaction by the marketing firm that contracted the job. Of course the lawyer they hire will probably need approval to negotiate a settlement from the website owners.
(IANAL)
You really screwed up when you wrote the letter to their lawyers. It made the problem much, much worse for you, your friend, and her client.
The normal first step for a copyright holder in this situation is a cease-and-desist letter, not a huge fee. Their fee is exorbitant, they likely know that, and they would probably have settled for something close to the money you should have paid them to use the images. They might have even been happy once their images were removed from the web site and forgot about the fee. By writing the letter, you've bent over, dropped your pants and decided to forgo any lube.
If you have any insurance that would cover this sort of thing (liability for your business or an umbrella policy), now is the time to call your agent. (Actually, the time to call your agent was when you first heard about it the problem)
If you don't have insurance, you have three options:
1. Pay the ridiculous fee.
2. Screw over your friend.
3. Get your own lawyer, and hope that getting yourself out of this mess doesn't cost as much as the fee.
No, your problem was not managing your art resources properly. The simplest things could be done to avoid it happening again --- for instance, any photo for which you would eventually need to pay, you can rename it to include some unique tidbit (say ".."), and then all you'd need to do is search your resource folder for that tidbit. Found anything? Then it's not cleared for deployment.
"Good news, everyone!"
You really screwed up when you wrote the letter to their lawyers. It made the problem much, much worse for you, your friend, and her client.
The little "(IANAL)" basically translates as "I am unqualified to tell you that 'You really screwed up when you wrote the letter to their lawyers.'" You don't know what the letter said. If the letter said, "This was an accident, not the client's intention, nor mine, wires got crossed somewhere, terribly sorry, and I took the offending material down and am taking steps to make sure this never happens again," then he and his client are a lot better off than if the letter said "I stole those images on purpose and the client didn't seem to care. It's obvious that we're in the wrong, have violated numerous laws, and owe your client at least $25,000. Please tell me your legal fees so I can cover those, too. Attached is a full accounting of my company's assets and revenue streams."
I can tell you're not an attorney because of all the things you didn't notice in the article. The client, not the Asker, is the one who received the shakedown notice. The client is the one with legal trouble and they are the ones in need of an attorney. The Asker may need one too, later, if the client (or anyone else) sends him an invoice, but the Asker hasn't received any threatening letters.
Based on what I've seen in the past -- as an interested outsider, not as an attorney -- an accused offender swiftly and voluntarily taking steps to remove infringing material is looked on very favorably by the courts. The $25,000 "invoice" is a shakedown by an outside contractor who probably has a semi-automated process that spiders for images then pastes a name in address into a boilerplate demand letter. Maybe in the UK that's a standard opening gambit. The client needs to get his advice from a professional who is qualified to act in the UK, not you or me, although I suspect I'm being more rational and realistic than you. A run-of-the-mill lawyer would probably be happy to advise the client, and even send a letter or two on his behalf, for less than $1000. Of course, if things progress, well, so do fees. One of the first things the client's lawyer will do is look at the letter that Asker send on client's behalf. If he sees it as harmless or positive he will probably send a letter to the shakedown artists (and the copyright holder) saying that the offending material was taken down, that the "invoice" is inappropriate, and the matter is now closed. The attorney will also advise the client on the actual limits of their liability.
Your gloating suggestion that Asker has "bent over, dropped your pants and decided to forgo any lube" is a fine example of why people should be asking lawyers, not Slashdotters, what to do when they need legal advice.
This is not my sandwich.
I believe that in Australia a private organisation cannot impose what amounts to a penalty/fine like that, they can only seek to recover the damages. As the quoted poster elegantly put it, $25000 is a stupid amount to try and claim. Given the roots of Australian law, perhaps something similar could apply in your case?
While all of this is very interesting and educational to discuss, anyone replying to you on slashdot is almost certainly not a lawyer (lawyers are known for their black, black hearts, and are unlikely to be handing out free advice on the internet
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It's been a few years since I'ver perused Corbis for images, but I thought they stuck a Corbis watermark on everything that was publicly accessable on their site.
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
A business liability form with advertising injury coverage, in particular, would guard the business just in case everything goes wrong.
:)
Yes, my agents offer this. No, I'm not saying who, because that could reach every state in the Union and that would mean I'm advertising out of state. I'm just saying... get business liability insurance and make sure it has advertising injury coverage. It's usually under "personal injury" and stuff like that.
Good luck.
--- Grow a pair, liberals... stop letting the Republicans bully you!
This may be good advice in a US context - I don't know. It's really, really bad advice in a UK context. Most UK lawyers are reasonable; and, furthermore, UK courts cannot be bought and are always reasonable. But one thing they won't tolerate is unreasonableness.
If you go to a UK law firm and say, 'look, I messed up, it was an honest mistake, I won't do it again, I'll happily pay your reasonable costs for sending that letter', you'll probably end up with a bill for under US$100. If they refuse and take the matter to court, then the judge will certainly look positively at that sort of approach. But if you attempt to do anything 'tough' or 'clever' you are going to be in such deep trouble.
Be humble. Be contrite. Be apologetic. Grovel. It will save a whole heap of trouble and money.
I'm old enough to remember when discussions on Slashdot were well informed.