Copyright - Picture - GettyImages

[jerseyguy]

What is the name of your state (only U.S. law)? NJ
We set up a website through a 3rd party provider. They used a photo on one of the pages that apparently was under copyright from GettyImages. They sent us a letter saying they want about 1,000 bucks because of our violation. We immediately removed the photo. They sent us a follow up letter saying we need to pay regardless of whether we remove the photo or not. We told them to jump in a lake because it wasn't our fault and because we removed it. They sent it to Attorneys who are now demanding 1500 bucks. Are we totally liable here?

 

[tranquility]

Getty has a reputation for pushing such violations. While you may have a cross-complaint against the third party vendor (who you join if a lawsuit), there is almost assuredly some responsibility on your part if you don't have a defense. Perhaps a fair use or a de minimus defense

For how some of that liability may arise, see also:
https://www.advisen.com/downloads/Intellectual_Property.pdf
http://blog.webcopyplus.com/2011/02/14/legal-lesson-learned-copywriter-pays-4000-for-10-photo/

 

[quincy]

What is the name of your state (only U.S. law)? NJ
We set up a website through a 3rd party provider. They used a photo on one of the pages that apparently was under copyright from GettyImages. They sent us a letter saying they want about 1,000 bucks because of our violation. We immediately removed the photo. They sent us a follow up letter saying we need to pay regardless of whether we remove the photo or not. We told them to jump in a lake because it wasn't our fault and because we removed it. They sent it to Attorneys who are now demanding 1500 bucks. Are we totally liable here?

First, I agree with all tranquility wrote (although "fair use" is probably not a defense that will fly).

How long was the photo displayed on your web page before you removed it?

There is such a thing as "innocent infringement," because copyright infringement is sometimes accidental and courts recognize this. Although being an innocent infringer does not excuse the infringement entirely, it can work as a mitigating factor when damages in an infringement action are assessed. Depending on the facts, and should the publication of the copyrighted photo on your website actually result in a court action, a court might be inclined to issue an injunction but award no monetary damages to the copyright holder.

And, as tranquility already noted, if a court were to find that your use was insubstantial and no harm came to the copyright holder as a result of the use, the publishing of the copyrighted work could be "excused." The temporary display of a copyrighted photo - one that appears only briefly and removed immediately upon notification - can be, and often will be, looked at as de minimus. It is not a fair use - it is just not a use that causes harm enough to warrant an award of damages.

You may want to respond to the attorney letter with an attorney letter of your own, after your attorney has had the opportunity to review the facts. The response to the infringement notice can include any defenses that may suit the facts of your use.

Good luck.

 

[tranquility]

First, I agree with all tranquility wrote (although "fair use" is probably not a defense that will fly).

And, as tranquility already noted, if a court were to find that your use was insubstantial and no harm came to the copyright holder as a result of the use, the publishing of the copyrighted work could be "excused." The temporary display of a copyrighted photo - one that appears only briefly and removed immediately upon notification - can be, and often will be, looked at as de minimus. It is not a fair use - it is just not a use that causes harm enough to warrant an award of damages.

Isn't de minimus a subset of "fair use"

From a recent case I found rather interesting for other reasons, http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/07/11-56573.pdf :

17 U.S.C. § 107 establishes that fair use of a
copyrighted work is not an infringement of copyright and lays
out four factors to apply when considering whether the use of
a work is “fair”:
(1) the purpose and character of the use,
including whether such use is of a commercial
nature or is for non-profit educational
purposes; (2)the nature of the copyrighted
work; (3) the amount and substantiality of the
portion used in relation to the copy righted
work as a whole; and(4) the effect of the use
on the potential market for or value of the
copyrighted work.
17 U.S.C. § 107. These four factors must all be explored, and
all the results evaluated together, in light of the purposes of
copyright. Campbell, 510 U.S. at 578.

It seems section 3 and 4 (especially 4) may very well apply. I recognize fair use tends to be focused on if a work is transformative, but we still have the elements. The case referenced does a discussion of each of the elements as applied to the facts there. And, while the facts are not the same for many reasons, there could be a bit of cut and pasting to this situation in elements 3 and 4. (Recognizing the 9th is not controlling authority in NJ.)

 

[quincy]

No. De minimus is a not a subset of fair use.

Under copyright law, there are actually two different ways this term is used. It is applied to those changes in an already existing copyrighted work that are so minimal as to not warrant a separate copyright registration. The original registration covers the work even with the changes that have been made to it.

And the other way the term is used is as it is here - a separate defense to copyright infringement based solely on the argument that such an insubstantial use of copyrighted material is not an infringement on the copyright holder's rights. See Sandoval v New Line Cinema Corp, 2 147 F.3d 215 (2d Cir. 1998) for a case that discusses de minimus as it relates to uses of copyrighted works.

Fair use, on the other hand, is a copyright infringement defense that depends on four different factors, each factor weighed by a court when determining whether the infringement is excusable. And a court is not limited by the four factors and can consider any other relevant factors. With fair use, you are admitting to the infringement (to using the copyrighted material that is the subject of the legal action).

The four factors in fair use that are considered by a court will be those you quoted in your post above. Fair use can be used as a defense when the copyrighted works are used in news reporting, for educational purposes, in research, and for commentary or criticism.

So, de minimus and fair use are two different defenses. Other defenses to copyright infringement are that the work used is not an infringement on an existing work but an "independently created" work, or the statute of limitations has run, or the use of the work was an authorized use of the material, or the material used is in the public domain.