Charged for website photo from template

[h2ocean]

What is the name of your state (only U.S. law)? MD. hi all I posted a website from a free template. 4 months later I received a bill from Getty images claiming unauthorized use without a license for the image. When I called them they said to bad a copyright is issues as soon as a photo is taken. I removed the image and now have a collection agency wanting the 1,200.00 for the image use. I logged on to their site and a license for the image for 6 months is only 400.00. My dispute is that there is nothing on the image or in the properties of the image to indicate it is copyrighted. There is no real way to search the image for copyright and they have no proof that it is not out there somewhere on the web (sold by the photographer) to someone else who has it available as royalty free. I don't know where the template maker got the image and am not sure if they have a right to charge me or if there is just a computer generated money making machine that mails everyone with a Getty image on their site. should i pay them or get a lawyer?

 

[divgradcurl]

What is the name of your state (only U.S. law)? MD. hi all I posted a website from a free template. 4 months later I received a bill from Getty images claiming unauthorized use without a license for the image. When I called them they said to bad a copyright is issues as soon as a photo is taken. I removed the image and now have a collection agency wanting the 1,200.00 for the image use.

If you used a photo that they own the rights to without permission, you are infringing on their copyright, and they have a right to enforce their copyright.

I logged on to their site and a license for the image for 6 months is only 400.00. My dispute is that there is nothing on the image or in the properties of the image to indicate it is copyrighted.

That might be a good point to start negotiations. However, don't be surprised if they refuse to settle for the license fee alone -- if the only punishment for infringement is that you simply pay the license fee, then there is no incentive to ever pay a license fee, you would just infringe, and only pay the license fee if caught. Expect that they will want more than just the license fee for the unauthorized use.

There is no real way to search the image for copyright and they have no proof that it is not out there somewhere on the web (sold by the photographer) to someone else who has it available as royalty free.

You are right that it is not really possible to tell if something is copyrighted or not -- but that's just the way it is right now. It's best to just assume that everything is copyrighted, and that you don't have the right to use anything unless you have explicit, written permission.

You are within your rights to ask them for proof or evidence that they own the rights to the picture. It's unlikely that someone else would be making the image available royalty-free, because they would have had to purchase the rights to do that from the original rights holder, and that would be more expensive for them, just to give something away for free -- doesn't make any sense.

I don't know where the template maker got the image and am not sure if they have a right to charge me or if there is just a computer generated money making machine that mails everyone with a Getty image on their site. should i pay them or get a lawyer?

Like I said, you can ask for evidence that they own the image, or have the right to enforce the rights on the image, before you pay anything. For this amount of money, it is likely not worth getting a lawyer, but you can try and negotiate a lower settlement amount -- just don't expect that it will be zero, and it will probably be higher than the license fees.

EDIT: And if you do end up negotiating a settlement, or you simply decide to pay their demands, make sure that you obtain a release of liability for the use of the picture to date, or a license to use the picture.

 

[Tallrat]

If it was listed as a free template than this is a scam. Tell them you want to see the evidence for copyright for your lawyer to look at.

 

[h2ocean]

asked for proof of copyright

hello again, per your advice i negotiated a settlement and requested the proof of ownership and a lien release. He stated that they do not own the copyright directly the photographer does and as soon as a picture is taken a copyright is automaticly formed. They are representing the interests of the photographer and cannot produce any copyright documentation.

I sais i then should be setteling this dispute with the photographer and he stated no it all is handled through them since they represent the best interests of the photographer.

 

[divgradcurl]

hello again, per your advice i negotiated a settlement and requested the proof of ownership and a lien release. He stated that they do not own the copyright directly the photographer does and as soon as a picture is taken a copyright is automaticly formed. They are representing the interests of the photographer and cannot produce any copyright documentation.

I sais i then should be setteling this dispute with the photographer and he stated no it all is handled through them since they represent the best interests of the photographer.

A release should be sufficient. You may want to ask them for some written evidence that they have the authority to negotiate on behalf of the photographer. They probably do, but if you want to be absolutely certain, see if they can provide you with something.

 

[h2ocean]

can't seem to produce a copyright

Their letter states that "unauthorized use of the image constitutes copyright infringement" I have found that in the United States a cease and desist must be sent first and it wasn't, and they also cannot produce any documentation of a copyright for the image. I feel right now that they are strong handing people for unneeded payment.

 

[divgradcurl]

I have found that in the United States a cease and desist must be sent first and it wasn't

Where did you get this idea? This is entirely incorrect. A cease and desist letter may be customary, but such a letter has no legal meaning in this case (except maybe to start the damages clock), and is never required. They could have simply filed a lawsuit.

they also cannot produce any documentation of a copyright for the image.

All creative works are copyrighted as soon as they come into existence. There is no requirement for any documentation of the copyright itself, unless the copyright is registered. Registration is only required if they intend to sue, and they can seek registration at any time if they decide to sue you.

What I said before was ask them for evidence that they have the authority to negotiate settlements on behalf of the copyright owner. That the copyright exists is beyond question -- the question is whether or not Getty has the authority to negotiate for the copyright holder.

They very likely do. It is not at all uncommon for a rights holder to assign the authority to negotiate or enforce their rights to another entity. The RIAA does not own the copyrights it is enforcing, but the rights holders have given the RIAA authority to work on their behalf, for example.

They should have some proof, even if it is just evidence that the photographer clicked through some sort of online agreement or something,

I feel right now that they are strong handing people for unneeded payment.

Maybe -- but I doubt it.

 

[Tallrat]

I am telling you that if it was a free template site tell Getty you got it from a free site and once they contacted you that you removed. Tell them to pound salt. Tell them to sue the free template site. This is a scam to get easy money.

 

[divgradcurl]

I am telling you that if it was a free template site tell Getty you got it from a free site and once they contacted you that you removed. Tell them to pound salt. Tell them to sue the free template site. This is a scam to get easy money.

Why does the template site have anything to do with this? If the template site agreed to indemnify anyone who used one of their templates, then the OP could try and recover any settlement with Getty from the template site. I doubt that there is any such indemnification, though -- more likely the template site requires people who use the templates to hold the template site harmless for any actions.

In any event, if this is indeed an infringing image -- and based on what the OP has written, there is no reason to believe it is not -- both the template site AND the OP is infringing on the rights of the copyright holder. The template site is violating the copyright holder's right to control reproduction and distribution of their work, and the OP is infringing on the copyright holder's distribution right and public display rights (maybe on the second one). Both are liable for copyright infringement.

Copyright infringement does not have an "intent" requirement. It doesn't matter whether or not you knew a photo was being used without permission, or if you were told it was okay to use the photo -- none of that matters (at least, not from a liability standpoint -- it can affect the damages calculus in certain instances).

If the OP ignores Getty, maybe everything will be fine. Maybe Getty would be satisfied with simply knowing the site he or she got it from -- I doubt it, but he or she could ask. But maybe Getty or the copyright holder might just decide to sue the OP to make an example of him or her -- that's also a possibility to consider.

 

[Tallrat]

The OP has not ignored Getty. He removed the image. Unless he get's a formal letter from a law firm I would cut further contact.

 

[The Occultist]

He removed the image.

Although typically enough to have a company stop pestering him, this doesn't necessarily leave the OP immune to any damages for the initial infringement.

OP, at the very least, you should sit down with an attorney who can analyze all relevant facts/details and see what insight they may be able to offer to your situation.