Do we owe for using a copyrighted image?
June 9, 2011 9:08 AM   Subscribe

Copyrighted image found on our website; photographer wants big bucks - what should we do?

A few years ago our organization had a site built in-house, and one of the images used in the layout was obtained from a "desktop wallpaper" repository site. We mistakenly thought it would be fine, and used only a small portion of the image. An honest, if perhaps naive mistake.

Recently, the photographer contacted us upon finding the image, and has asked for compensation (and incidentally, the wallpaper site had procured the image illegally). We offered to remove the image immediately, but were informed that payment was still required for the time the image was used.

So, are we obligated to pay?
posted by klinefelter to Law & Government (31 answers total) 6 users marked this as a favorite
 
lawyer.
posted by sweetkid at 9:11 AM on June 9, 2011 [7 favorites]


I'd change the image asap, make a counter offer. Negotiation.
posted by Ideefixe at 9:12 AM on June 9, 2011 [1 favorite]




make a counter offer.

Try not to start any "negotiation" with an admission of fault, please.
posted by thejoshu at 9:20 AM on June 9, 2011 [5 favorites]


Read the thread mentioned above. Don't communicate with this person, wait to see what happens.
posted by tomswift at 9:27 AM on June 9, 2011


If the image is removed, what recourse will the photographer have for demanding payment?

@thejoshu - I've already replied to the photographer, indication that the image was taken from another site that misrepresented it's authorship and copyright, and offered to remove the image immediately. I also linked to the image on this wallpaper site, assisting him in preventing this from happening again.
posted by klinefelter at 9:30 AM on June 9, 2011


that's 'indicated'.
posted by klinefelter at 9:31 AM on June 9, 2011


In the older linked threda, I told the blogger/poster to ignore the photographer, largely because it was a persobal blog. Yours is a commercialwebsite. Unless the guy is asking millions, I don't see why you don't just pay him. Your company used the photo, did no due diligence as to copyright--pay the guy.
posted by Ideefixe at 9:37 AM on June 9, 2011 [4 favorites]


Thread and personal. Fat fingers, sorry.
posted by Ideefixe at 9:38 AM on June 9, 2011


How much money does he want? How much money would it cost you to talk to a lawyer?

If the image is removed, what recourse will the photographer have for demanding payment?

He could sue you for it. Or start some public campaign denouncing your business.
posted by grouse at 9:47 AM on June 9, 2011 [1 favorite]


The amount is, I suppose, reasonable. Therefor, payment seems to be the best recourse, as an attorney would quickly amount to as much or more.
posted by klinefelter at 9:56 AM on June 9, 2011


used only a small portion of the image

This could be relevant, but you'd need to talk to a lawyer about the relevant details. The question then becomes whether the lawyer is going to be more expensive than just paying the photographer.

By the way, are you sure the photographer is legit and owns the image in question, and isn't just some troll looking to make money?
posted by alms at 9:58 AM on June 9, 2011


~used only a small portion of the image
~This could be relevant...


No, it isn't. "All, or in-part" is the operative term with situations like this.

It was an honest (if dumb) mistake. Pay up and chalk it up to a lesson learned.
posted by Thorzdad at 10:02 AM on June 9, 2011 [1 favorite]


Call your insurance carrier. Many CGL policies have coverage for unintentional copyright infringement. This would mean that your insurer would pay for your defense and/or settle the case with a minimum of fuss, with a minimum of cost to you.
posted by valkyryn at 10:06 AM on June 9, 2011


Clearly, you liked a piece of this photographer's work. Is there any possibility you might want another of their images in future? Is there way a you could step out of the photographer-vs-you box and re-imagine it as a photographer-working-with-you situation?
posted by philip-random at 10:08 AM on June 9, 2011 [11 favorites]


since it would be more expensive to hire a lawyer (what is the photographer asking, like $3000-5000?), i would def feel free to negotiate as ideefixe suggested. i would also get it in writing that the image is yours to use for the time it was up, and, if you do want it, in the future as well.
posted by sexyrobot at 10:44 AM on June 9, 2011


Is the letter from Getty Images? If so, read on...
http://extortionletterinfo.com/
posted by Dolley at 11:23 AM on June 9, 2011


(Sorry for all the typos. ) The guy can't hold you up for more than the original license would be, if that's any comfort. And that you found it on a wall-paper website doesn't really mean much--those photos still aren't there for commercial uses.

You're a photographer--what would you want someone to do for you?
posted by Ideefixe at 11:44 AM on June 9, 2011


If the image is removed, what recourse will the photographer have for demanding payment

They will sue you, and they will win. Most likely you will owe even more money than if you just pay now.


I'm a photographer and have had to do this to people who used my work commercially without permission. You are in the wrong, hiring a lawyer is not going to change this. Pay the fee, and in the future do not use things that don't belong to you for your business.

The guy can't hold you up for more than the original license would be, if that's any comfort.

He can set whatever price he wants. The poster has no leverage to negotiate the fee here. The alternative is being sued for infringement, where he most definitely will owe more than what the fee normally would have been. I double (or more) my normal fee for wasting my time and the bad faith action on the part of the infringer that led to this situation.
posted by bradbane at 11:53 AM on June 9, 2011 [1 favorite]


I'd pull the image and ignore. Wait for him to sue you.
posted by shew at 12:12 PM on June 9, 2011


Bradbane--it's my understanding, and I work in documentary with archival images, that unless the rights owner can prove actual damages, they can't sue for more than the original license fees would have been. I could be wrong, of course.
posted by Ideefixe at 12:16 PM on June 9, 2011


I can't believe that answers that are saying to ignore it and it will go away. You took something that didn't belong to you, and used it to promote your business. Pay for it. Done.

The internet is not an endless scrap pile for you to use. Jebus. If you feel like the deal the photographer is making isn't fair, try to negotiate with them.
posted by monkey!knife!fight! at 12:21 PM on June 9, 2011


Nthing everyone who says to pay up. And, like Ideefixe says, based on your previous askMe, you are a photographer, you should have known better to begin with and should be willing to pay for services that you sell yourself.

This is the beauty of TinEye. It can help photogs find out who is using their work without permission.
posted by holdkris99 at 12:38 PM on June 9, 2011


Bradbane--it's my understanding, and I work in documentary with archival images, that unless the rights owner can prove actual damages, they can't sue for more than the original license fees would have been. I could be wrong, of course.

I don't know much about licensing archival images, but in the commercial world this would effectively make copyright law entirely pointless. If this were true everyone would steal everything and only pay up if they got caught. There are industry standards, but commercial licensing fees can vary highly from photographer to photographer too. You can basically sue for whatever you reasonable amount you feel like.

I'd pull the image and ignore. Wait for him to sue you.

We're not talking about putting an image up on a personal blog, he used something he did not have the right to in a commercial context. Ignoring it is really, really bad advice. He is going to have to pay for it one way or the other. It's not like photos ready to be licensed for commercial use with a few clicks are hard to find.
posted by bradbane at 12:41 PM on June 9, 2011


I agree strongly with everyone!

Ethically and morally, come to terms with him and send him a few bux and an apology.

Legally, pay when you have to. If you are about to go broke and this will sink your boat, the ship comes first, no matter who the creditor. (See "bankruptcy").


Personally, I opt for the ethical when I have the chance. Life is too short to be legal about everything. It's no fun, either. What's a few bux in the grand scheme of things?
posted by FauxScot at 1:00 PM on June 9, 2011


bradbane: "I don't know much about licensing archival images, but in the commercial world this would effectively make copyright law entirely pointless. If this were true everyone would steal everything and only pay up if they got caught. There are industry standards, but commercial licensing fees can vary highly from photographer to photographer too. You can basically sue for whatever you reasonable amount you feel like."

This is, in short, almost completely wrong. It's a complex issue, but as a starting point "actual damages" is exactly what you get, unless you have registered the work with the Copyright Office. You do not get to recover whatever "reasonable amount you feel like."
posted by lex mercatoria at 1:30 PM on June 9, 2011


Lex--it has always been my understanding, that a copyright owner, in order to get more than the lost license fees, would have to prove that the non-permited use of their work somehow detracted from the value of the work. It's one thing to sue for the lost license fees, but another to claim that you lost millions by having your work "stolen" by someone else. There's not just 1 copy of this photo,and that no one else could legitmatelylicense it just because someone pasted it onto a website.
posted by Ideefixe at 10:11 PM on June 9, 2011


(As an initial comment, when I say that it's a complex issue I don't mean that there is some sort of occult knowledge that ones needs to understand it. The statute is there for anyone to read. I mean that damage calculations are highly fact-specific, and it's hard to make many general statements that will be true in all cases. Having said that, copyright is particularly difficult because the statute does in fact contain lots of special cases that apply only in certain circumstances.)

The statute speaks of "actual damages" and not of "lost license fees" or any other particular sort of damage. Actual damages can include all sorts of things, including license fees and lost profits, as measured by the profits gained by the infringer (lost profits are, in fact, expressly provided for in the statute as a component of actual damages), and anything else you can prove. As you point out, the owner may have problems proving more extensive damages.

None of this is going to be of much help to the Asker, I'm afraid. I second the recommendations above to consult an attorney in your jurisdiction.
posted by lex mercatoria at 1:45 AM on June 10, 2011 [1 favorite]


Depends on how he's approaching it. You've said the amounts reasonable, so I'd say pay up, especially as you liked the photo enough to use it in the first place. I'm guessing paying would also allow you to keep using the photo.
posted by MattWPBS at 4:32 AM on June 11, 2011


From what you say, you infringed his copyright, which means he's entitled to actual damages. Generally speaking, not knowing if an image is copyrighted or not is not a good defense, since unless you have a license in hand or evidence that the image is public domain, it's hard to use it legally.

Going by photoattorney.com, which he probably is as well, he's also entitled to statutory damages if he's registered the copyright. If he's a copyright-savvy enough photographer to find and follow up on your infringement, he's very likely done this.

I'd nth the suggestions to consult your own attorney. I'd also point out that my understanding (admittedly only as a photographer) is that when these things go to court, it's pretty cut and dry in favor of the copyright owner.

If the image is valuable to your site, consider asking him if he'd be willing to negotiate a license for legit use. I'd personally be willing to consider a smaller amount as a retroactive license fee if I knew I'd be turning the infringer into an ongoing client, especially if they're keep the whole process amicable, but that's just me.
posted by toxotes at 3:57 PM on June 11, 2011


he's also entitled to statutory damages if he's registered the copyright

Yep. If you're in the US, it's up to $150,000 per infringement if the copyright is registered.
posted by msbrauer at 6:54 PM on June 11, 2011


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