How to deal with an unpaid stock image licensing fee?
November 14, 2010 11:14 PM Subscribe
Getty Images wants $1200+ for use of a licensed image on a website I created nearly seven years ago and have done virtually no work on since. The design (a template including graphics) was handled by my brother in law, a professional web/UI designer.
In 2004 I was paid by a small local business (literally a mom & pop operation - a married couple) to create their website. I took care of all the technical stuff and contracted the design to my brother-in-law. He provided a perfectly reasonable template based on the client's specs. They launched, and I've had very little contact with them since, especially after giving them the information they needed to do the domain and hosting renewals themselves.
Last week, the client contacted me, pretty freaked out. They've received a letter from Getty Images (PDF available here) noting the unlicensed use of one of their stock images and asking for back payment on the image, totaling a little over $1200. The letter, which I initially assumed was a standard cease & desist, explicitly states that removing the image from the site (which I immediately did, of course) does not resolve the matter - they want to get paid.
What are my options?
Is there any chance this will just go away (i.e., Getty will forget about it because it's not important enough)? Should I check with them on the off chance that my BIL licensed the image at that time (he would have used his name, so they wouldn't necessarily have connected the dots)? My clients are not wealthy but I don't think this would break them, but it would certainly leave a bad taste in their mouth about working with me. I don't do or look for this kind of work anymore, but I don't like having stuff like this hanging over me.
My BIL no longer has the files on this from 2004 (I only have a couple of emails about the project and his invoice), and he doesn't know whether or not he licensed the image at that time (I doubt it). Going after him for the money would be touchy at best, seeing as he's family.
In 2004 I was paid by a small local business (literally a mom & pop operation - a married couple) to create their website. I took care of all the technical stuff and contracted the design to my brother-in-law. He provided a perfectly reasonable template based on the client's specs. They launched, and I've had very little contact with them since, especially after giving them the information they needed to do the domain and hosting renewals themselves.
Last week, the client contacted me, pretty freaked out. They've received a letter from Getty Images (PDF available here) noting the unlicensed use of one of their stock images and asking for back payment on the image, totaling a little over $1200. The letter, which I initially assumed was a standard cease & desist, explicitly states that removing the image from the site (which I immediately did, of course) does not resolve the matter - they want to get paid.
What are my options?
Is there any chance this will just go away (i.e., Getty will forget about it because it's not important enough)? Should I check with them on the off chance that my BIL licensed the image at that time (he would have used his name, so they wouldn't necessarily have connected the dots)? My clients are not wealthy but I don't think this would break them, but it would certainly leave a bad taste in their mouth about working with me. I don't do or look for this kind of work anymore, but I don't like having stuff like this hanging over me.
My BIL no longer has the files on this from 2004 (I only have a couple of emails about the project and his invoice), and he doesn't know whether or not he licensed the image at that time (I doubt it). Going after him for the money would be touchy at best, seeing as he's family.
"My clients are not wealthy but I don't think this would break them,"
I'd say ignore the letter, but if, for some strange reason, Getty decides to be really particular about this and actually enforce it, please don't expect your client to pay the fee. It's not their fault that a template they received as part of their contracting of services with you contains unlicensed material.
I would think that graphic designers are supposed to ensure that the material they use in their work is legit and free from potential problems like this. I currently freelance and I try to be really careful about where I get my images from, what licenses are attached to it, etc, because personally I cannot afford to cover any charges a client brings to me from unlicensed image usage. :(
posted by joyeuxamelie at 3:10 AM on November 15, 2010 [3 favorites]
I'd say ignore the letter, but if, for some strange reason, Getty decides to be really particular about this and actually enforce it, please don't expect your client to pay the fee. It's not their fault that a template they received as part of their contracting of services with you contains unlicensed material.
I would think that graphic designers are supposed to ensure that the material they use in their work is legit and free from potential problems like this. I currently freelance and I try to be really careful about where I get my images from, what licenses are attached to it, etc, because personally I cannot afford to cover any charges a client brings to me from unlicensed image usage. :(
posted by joyeuxamelie at 3:10 AM on November 15, 2010 [3 favorites]
IAAL, and though IANYL, this seems fishy to me. They're going to have to make some kind of showing that they actually own the copyright to the image in question. From the facts you've given, it sounds like that's going to be a stretch, especially as they're in the business of collecting money off images they didn't create. Odds are decent that they somehow absorbed the image after this website started using it.
In short: it's probably worth the $200-500 it would take to hire a lawyer and send Getty packing rather than paying the $1200 fine. Heck, there are going to be a bunch of public interest outfits both at law schools and places like the EFF that might be willing to take the case for free, just to establish good precedent and punish a copyright troll.
posted by valkyryn at 3:25 AM on November 15, 2010
In short: it's probably worth the $200-500 it would take to hire a lawyer and send Getty packing rather than paying the $1200 fine. Heck, there are going to be a bunch of public interest outfits both at law schools and places like the EFF that might be willing to take the case for free, just to establish good precedent and punish a copyright troll.
posted by valkyryn at 3:25 AM on November 15, 2010
I'm assuming that this is a stock image of some form and this is somewhat off the question asked. This guy has a number articles (and bias) on the inequities of the way that Getty treats photographers. The regrettable truth is that the photog isn't likely to see much in any instance.
The only forward-looking comment I can make is if you decide to respond to their request is to clarify the original copyright holder so that you can "look at your records"
posted by michswiss at 4:47 AM on November 15, 2010
The only forward-looking comment I can make is if you decide to respond to their request is to clarify the original copyright holder so that you can "look at your records"
posted by michswiss at 4:47 AM on November 15, 2010
If this was a royalty-free image, it's very possible it didn't even come from Getty in the first place. If one has any experience shopping for stock images, one of the first things you notice is that, quite often, an image will appear on multiple stock services' websites. In this instance, it's up to Getty to prove that the image in-question was, in fact, purchased from Getty almost 10 years ago, and that the rights purchased at the time excluded web-usage over this period.
This argument, of course, assumes the image was actually purchased. If, on the other hand, the sample image was downloaded and used, and this image has always been a Getty exclusive (or an exclusive of some other stock service Getty may have acquired in the intervening years), then Getty may well have a strong case.
The almost 10 year lag between when they claim the image was first used and now raises a few flags for me. Stock services are actually pretty good at identifying use infringements in a timely manner. For example, a former employer of mine was dinged within 3 years of them mis-using a rights-managed imaged we purchased for a one-time use in a print project.
posted by Thorzdad at 6:48 AM on November 15, 2010
This argument, of course, assumes the image was actually purchased. If, on the other hand, the sample image was downloaded and used, and this image has always been a Getty exclusive (or an exclusive of some other stock service Getty may have acquired in the intervening years), then Getty may well have a strong case.
The almost 10 year lag between when they claim the image was first used and now raises a few flags for me. Stock services are actually pretty good at identifying use infringements in a timely manner. For example, a former employer of mine was dinged within 3 years of them mis-using a rights-managed imaged we purchased for a one-time use in a print project.
posted by Thorzdad at 6:48 AM on November 15, 2010
After reading obiwanwasabi's link, I guess i would agree to ignore it. But I do take issue with you saying that going after your brother-in-law for the money would be touchy. This entire situation is HIS fault. He is "a professional web/UI designer," and there is no way he didn't know that using a Getty image without licensing it was not okay. It's one of the first things we're taught in school. If you use the image, you license it. IMO, him saying he "doesn't remember" if he licensed it means he didn't license it (because otherwise the answer would be "of course I did, I must have, I would NEVER use an image without licensing it!"). It sucks that this is family and you don't want to "go after him" for the money, but come on... he did something wrong, that he knew was wrong, and now someone else is supposed to pay for it?
Otherwise, perhaps if you can track the photographer down, you could buy a retroactive license directly from them. The wiki link talks about a case in Germany where this worked.
posted by coupdefoudre at 6:52 AM on November 15, 2010 [1 favorite]
Otherwise, perhaps if you can track the photographer down, you could buy a retroactive license directly from them. The wiki link talks about a case in Germany where this worked.
posted by coupdefoudre at 6:52 AM on November 15, 2010 [1 favorite]
As the designer of the site, your brother-in-law is, in the final analysis, responsible for this foul-up and paying for it. However, from the client's point of view, you were the person they hired and all this was your responsibility. Contact Getty to see if there is in fact a license, and if there's not, pay the bill immediately to ease the client's mind.
What I'd be freaking out about is not this $1200, but how many other times your brother-in-law used unlicensed stock images on sites you've worked on together in the last seven years, and how many more $1200 bills will be coming your way from Getty and others. I suggest you have a frank discussion about this with your brother-in-law immediately, and begin tracking down and replacing other unlicensed images ASAP.
This is why, by the way, small businesses buy liability insurance, but I'm sure it didn't seem worth it at the time you were building the site.
posted by kindall at 7:12 AM on November 15, 2010
What I'd be freaking out about is not this $1200, but how many other times your brother-in-law used unlicensed stock images on sites you've worked on together in the last seven years, and how many more $1200 bills will be coming your way from Getty and others. I suggest you have a frank discussion about this with your brother-in-law immediately, and begin tracking down and replacing other unlicensed images ASAP.
This is why, by the way, small businesses buy liability insurance, but I'm sure it didn't seem worth it at the time you were building the site.
posted by kindall at 7:12 AM on November 15, 2010
I kind of agree with wackybit. If I were Getty I would have a google alert that would find forum posts like this. It would make proving infringement in court much easier.
posted by PercussivePaul at 7:20 AM on November 15, 2010
posted by PercussivePaul at 7:20 AM on November 15, 2010
Since this is your business, you're technically the liable party, not the mom and pop shop. However, IF you do have to pay (which it seems like it wouldn't be the whole $1200, but IANAL), it should be billed to the BIL. If he were just some high school kid that didn't know better at the time, it's one thing. But the guy's a professional. And even if he weren't, it's just plain common sense that you can't use licensed content without authorization. You just can't.
I'm with kindall. You need to have a talk with him and any other wed designers you've hired and start tracking down images ASAP!
posted by Neekee at 8:31 AM on November 15, 2010
I'm with kindall. You need to have a talk with him and any other wed designers you've hired and start tracking down images ASAP!
posted by Neekee at 8:31 AM on November 15, 2010
Response by poster: Thank you all! I'm definitely calmer about the situation now, based on the history of this issue as documented in the Wiki sources and elsewhere.
Couple of clarifications:
* Thanks for all the concern, but I did not work with my BIL on any other sites after this one, so if he used rights-managed images without licensing them, it ain't my problem. He actually said that he MIGHT have bought the web-only version, which would have been the logical thing to do, but can't be sure.
* I thought about anonymizing this, and about redacting the business name from the letter, but it was late last night and I kind of couldn't put it all together. Seeing the split on this issue in the thread, I'm still ambivalent. As far as putting a date on the "violation," this thread does nothing to help or hurt me, I think - the very first archive.org capture of the site has the image, so until I get that removed, this thread isn't an issue.
* I have a lawyer I can consult on with this, that's my next step.
posted by yiftach at 9:11 AM on November 15, 2010
Couple of clarifications:
* Thanks for all the concern, but I did not work with my BIL on any other sites after this one, so if he used rights-managed images without licensing them, it ain't my problem. He actually said that he MIGHT have bought the web-only version, which would have been the logical thing to do, but can't be sure.
* I thought about anonymizing this, and about redacting the business name from the letter, but it was late last night and I kind of couldn't put it all together. Seeing the split on this issue in the thread, I'm still ambivalent. As far as putting a date on the "violation," this thread does nothing to help or hurt me, I think - the very first archive.org capture of the site has the image, so until I get that removed, this thread isn't an issue.
* I have a lawyer I can consult on with this, that's my next step.
posted by yiftach at 9:11 AM on November 15, 2010
Response by poster: Oh, and I'm completely aware that ultimate responsibility lies with me. Not trying to shirk it in any way; that's why I came here. I will see this through.
posted by yiftach at 9:12 AM on November 15, 2010
posted by yiftach at 9:12 AM on November 15, 2010
Mod note: few comments removed - this is not an open referendum on whether Getty is or is not ethical, this is abot how to solve the OPs problem, take other sidebars to email, thank you.
posted by jessamyn (staff) at 3:11 PM on November 15, 2010
posted by jessamyn (staff) at 3:11 PM on November 15, 2010
I have never used Getty so I don't know how helpful this will be, but do they have a accounts on their site such that your brother-in-law could log into and see which images he "may have" licensed. If Netflix can tell me what movies I rented in 2004, Getty should be able to tell him which images he has licensed.
posted by Yorrick at 6:10 PM on November 15, 2010
posted by Yorrick at 6:10 PM on November 15, 2010
IANAL but I have researched on this a little in the past. The statute of limitations may have passed for them to get money. The key point is when the date of publication is/was: Some argue that the date of publication for a website is the first date the website was put up and available online. (Check archive.org?) The other argument is that publishing a webpage online is continual publishing and so the statute of limitations would only be past, say 2 years, after the website/image is taken down. Complicating that may be the statute of limitations laws in whichever state/country the website's creator and/or server/webhost are in and where Getty's located.
I think the onus would be on Getty to prove that they owned/claimed the image before the website was first published.
posted by IndigoRain at 10:19 PM on November 15, 2010
I think the onus would be on Getty to prove that they owned/claimed the image before the website was first published.
posted by IndigoRain at 10:19 PM on November 15, 2010
Response by poster: Revisiting before closing this up:
I'm not expecting any additional grief from Getty, but my BIL totally owned up and gave me his written word to pay the fine if it comes to that.
Thanks for all your input!
posted by yiftach at 3:02 PM on December 15, 2010 [1 favorite]
I'm not expecting any additional grief from Getty, but my BIL totally owned up and gave me his written word to pay the fine if it comes to that.
Thanks for all your input!
posted by yiftach at 3:02 PM on December 15, 2010 [1 favorite]
This thread is closed to new comments.
IANAL, but if I were you I'd anonymize this case as soon as possible and try and get the site off of archive.org ASAP (not sure if this is possible now, but it used to be). Where your client goes legally from there is not for me to speculate but the less evidence/proof that Getty has, the better. (Curiously the picture in question is the only image that does not load on archive.org archives of the site..)
posted by wackybrit at 11:51 PM on November 14, 2010 [1 favorite]