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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.
that you exposed yourself by sending a letter. You should have just scrubbed the site, ignored the legal letter or sent a polite response that there was no infringing content on there (now), and forget about it. IF worse comes to worse, claim that they hacked your site and file countersuit - that'll shut them up fast. They want easy prey.
By explaining yourself to them in writing, you opened yourself up to all sorts of things. Never write down. Just clean it up and forget about it.
Lock the door. And hope they don't have blasters.
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.
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Other photo houses (Getty) send out cease and desist letter and it's done
How do you know this? It happens often?
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.
...and neither are more people on Slashdot. And even those who are would probably disclaim that they can't provide you with legal advice.
Talk to your lawyer. You should have talked to them before you even sent that letter.
Asking about the problem on Slashdot is a great way to throw a pity party, but a poor way to get sound legal advice.
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So much time wasted over such an abtract, and mostly useless concept.
I know it's instant mod points to call copyright law bullshit, but come on.
These images have value. It is not trivial to shoot a commercial photograph. Photographers, models, art directors have to be paid and locations, props and equiptment have to be bought and rented. To obtain an original image of the equivalent quality would have cost this person far more than the license fee.
It's a shame that he got popped for it and I do hope it can be resolved painlessly, but they have a right to protect their product.
(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.
I don't know if you are familiar with stock-photography, but many (if not most) of those pictures are shot, just to be sold on the site. Like it or not, but I think it's a great service, since it spares those copywriting persons a lot of hassle, and gives them great pictures in exchange for a little (or sometimes a lot of) money.
I have browsed the Corbis site regularly, just for the pure fun of it, and their standard is very high. If you can afford them, they are worth it.
Like so many others here, IANAL. However, I do have one thing to add that seems to have been missed: the legal actions so far have occurred in the UK. UK copyright law is different to US copyright law in that we don't have statutory damages. The insanely high demands are not legal in the UK: if you could have licensed the images for $800, $800 is the highest award a UK court will make to them. Plus their lawyers fees.
What you do right now is talk to a *UK* lawyer, and mention this idea to them, asking for their opinion of it:
Write a letter back, headed "WITHOUT PRIVELEGE, SAVE AS TO COSTS". Offer to make a payment of $800 in settlement, stating that you believe this is the true market price of the material you used, and are more than happy to pay it.
If they accept your offer, you pay up, and that's the end of it.
If they don't accept, you go (or send a lawyer to) a UK court, and when an award, probably in the region of $800, is made to them, you (or your lawyer) shows the judge a copy of that letter, which should ensure that no costs award is made against you.
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.
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Yeah, and that software has value is also subjective. I sell stock photos AND I develop software. For you to label either as "subjective" just indicates your myopic attitude. How is spending 400 hours to get a great photo worth any less than someone else spending 400 hours to do what they do?
One of the quirks of British law is that if someone accepts a payment "in full and final settlement" then that's the end of the matter. I suggest posting Corbis (not their law firm) a cheque for $800 (but in UK pounds) with an accompanying letter stating what it's for and including the magic phrase "in full and final settlement". If the cheque is cashed, send the lawyers a photocopy of the letter, and tell them your offer of $800 in full and final settlement was accepted and the matter is now closed. If not, it's only cost you the price of an envelope and some stamps.
Next time, why not use iStockphoto (disclaimer: I sell images there so I'm biased). Their system is to charge a few dollars for images at the comping stage, but this includes the rights to use the images in web pages, so you can't end up in this situation.
A pizza of radius z and thickness a has a volume of pi z z a
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.
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IANAL, but
Many attorney letters start,
"Please be advised, I represent..." without offering proof of their standing.
At the very least, this gives sufficient response to put the ball back in their court to demonstrate their representation.
(They should provide you with a corporate resolution of authorized signers and a written release/acknowledgment to the law firm from someone on that list)
Bonus points to you if what I have seen happen occurs with you--
They provide a resolution with names and the person's name signing the release isn't even on the f'ing list (very common with bank officers). Dumbass attorneys.
Delay, delay, delay. Sometimes they just go away.
If that doesn't work, don't pay, let them turn it over to a collection agency who will be happy to shut the books on it for pennies on the dollar.
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