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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.
Editor Emeritus and Senior Writer, TeleRead.org
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.
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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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.
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