Getty letter for using image supplied by 'reputable' company

[surfgatinho]

On a (now defunct) website I run there are hotel listings. The info and photos are supplied by a large, established hotel booking company. It turns out that one of the photos for one of the hotels is a Getty Image.

Now, I realise there is such a thing as secondary infringement, and that in some cases the publisher is still responsible for such content. However, for some naive reason I didn't imagine there would be any copyright issues with these images I didn't create an effective safe harbor policy. (However, as the site is now gone, I suppose could claim there was some sort of process for reporting this and see if that puts them off.)

Nevertheless, as the image was not hosted on my servers, just pulled from the hotel affiliate site I feel a little aggrieved to say the least.

If you remember, I was in the opposite situation a while back where I was in dispute with a company that had used several of my images claiming they were sent over by a user.
I let them off after they eventually apologised - so much for karma!


Any help with this would be appreciated.
Thanks,
Chris

[AndyJ]

Nevertheless, as the image was not hosted on my servers, just pulled from the hotel affiliate site I feel a little aggrieved to say the least.

Hi again Chris,
If I have undestood the above statement correctly, the disputed image only appeared on your (defunct) site due to an inline or deep <img></img> link. Since you are based in the UK (as hopefully is the server on which your site was hosted), you can resist the claim of infringement by quoting two recent decisions* of the Court of Justice of European Union (CJEU) in which they found that linking and framing did not amount to 'communication to the public', something which would have been an essential element for infringement on your part.
The cases are
Svensson v Retriever Sverige AB
and
BestWater International GmbH v Michael Mebes and Stefan Potsch (unfortunately the finding of the CJEU in this case is not available in English but here is a translation (from the French) of the Court's finding

the Court (Ninth Chamber) hereby rules:
The mere fact that a copyrighted work, freely available on a web site, is inserted in another website through a link using the technique of "transclusion" ("framing"), as used in the main proceedings, can not be described as "communication to the public" within the meaning of Article 3, paragraph 1 of Directive 2001/29 / EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society, to the extent that the work in question is not transmitted to a new public or disclosed following a specific technical mode, different from the original communication.

Put simply, at no time did a copy of the image actually appear on the equipment you controlled; the only time a copy of the image would be created was when a user viewed the relevant page of your site, at which time the disputed image would have been served directly to the user's computer by the site which actually hosted it. It makes no difference whether the image was hosted there with or without authorisation. In other words Getty's dispute lies with the hotels booking site.

Inevitably I very much doubt if Getty will accept this argument and will continue to hassle you. On that basis it would probably be worth instructing a solicitor as Getty may take more notice of a solicitor's letter. I suspect that they will already be familiar with the two CJEU decisions and will not want to fight this in court as, on the caselaw as it stands at present, they would lose.


* if you want a simpler analysis of these rather heavy court decisions just Google "Svensson +copyright" or "Bestwater +copyright"

[surfgatinho]

Hi Andy,

Many thanks once again for your help.

As you say Getty will not want to fight a case like this for £500 if they are on the wrong side of the legal precedence. And I will try and point this out to them as eloquently as possible along with pointing out exactly where the image resides.

Regarding using a solicitor, it would also seem pointless for the sum involved.

So, we shall see what happens.

Chris

[surfgatinho]

Andy,

Just another quick question:

Would unwittingly using an image provided by a third party software solution / database (to advertise their customer's hotel) be counted as secondary infringement?

Whilst I recall lack of knowledge not necessarily being a reliable defence I recently read something stating that the level of knowledge would be what is considered fair and reasonable to the layman.

Given this was a database containing many thousand images provided by a blue chip company I would never have imagined to be in this position.

Thanks,
Chris

[AndyJ]

Hi Chris,
If you had copied the image so that a copy was stored on your server and it was from there that a visitor downloaded the image as part of a web page from your site, then that would be primary, not secondary, infringement (see sections 17 and 18 of the CDPA).
Secondary infringement occurs in the following circumstances:

22 Secondary infringement: importing infringing copy.

The copyright in a work is infringed by a person who, without the licence of the copyright owner, imports into the United Kingdom, otherwise than for his private and domestic use, an article which is, and which he knows or has reason to believe is, an infringing copy of the work.

23 Secondary infringement: possessing or dealing with infringing copy.

The copyright in a work is infringed by a person who, without the licence of the copyright owner—

• (a) possesses in the course of a business,
  
  (b) sells or lets for hire, or offers or exposes for sale or hire,
  
  (c) in the course of a business exhibits in public or distributes, or
  
  (d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,

an article which is, and which he knows or has reason to believe is, an infringing copy of the work.

However if secondary infringement was the issue, as you can see from the final words of both the above sections, you have to have reason to believe it is an infringing copy. That can be turned round to say that a reasonable person in the same circumstances would believe that it was not an infringing copy. So if someone else had built your website and had copied the image as part of that work, and you merely operated the site then secondary infringement would apply to your use, and in that situation you would need to be able to show you had reason to believe the image was non-infringing before you could be found not liable.

However where the image has been copied (whatever the circumstances) it would not be reasonable to say that because it was taken from a reputable site such as the hotel listings site, it was non-infringing, because the mere act of taking it without permission effectively creates the assumption that an infringing act has occurred. For example the hotel site might well be using the image legitimately with a licence from Google, but that licence would not allow anyone else to copy and use the image.

[surfgatinho]

Thank you so much for yet another informative reply. I am learning...

I have drafted a response to Atradius Collections (Getty's stooges) setting out the legal precedence and telling them to prove infringement or cease their claims.

I'd imagine I'd be the last person they would want to take to court. It would be a very poor return on investment for them.

Shall wait and see what happens...

[AndyJ]

Hi Chris,

The mention of Atradius Collections adds a new twist to this.
I imagine you have already googled them, but if not try "Atradius Collections complaints".

The twist is that they are not a licensed debt collection service and because they are not the owner of the copyright - we have to assume that Getty does have a valid claim to copyright - they cannot take infringement action against you in court. In other words they are the monkey, not the organ grinder. Court action would have to be done by the copyright owner or any exclusive licensee (such as possibly, Getty) - see Section 96 and s 101. Since I haven't seen the agreement between Getty and the photographer who took the image, it isn't possible to say what rights have been assigned to Getty (ie whether they are an exclusive licenseee or not). While Getty will be authorised to issue sub-licences to users of the images they hold, they cannot in law 'licence' some third party to bring a claim to court after the event. Section 101A does permit a sub-licensee to bring a claim in a similar way to the copyright owner, but only where the act complained of occurred while that sub-licence was in force and only when this specific power has been granted in the licence agreement: the former definitely won't apply here, and I doubt that the latter does either in the case of Atradius. Indeed I am doubtful if Atradius have any sort of 'licence' at all in respect of copyright. A number of previous cases of this sort have failed precisely on this point.

If you haven't already sent your letter, I think it would be sensible to start it with a sentence or two to the effect that since they have offered no evidence that they are the legitimate owners of copyright they have no standing to bring a claim of infringement, and since they are not licensed by the Office of Fair Trading as a debt collection company, they have no standing to recover monies on behalf of Getty. On that basis you decline to have any further dealings with them. You can of course go on to outline why you believe the claim if infringement has no merit, in the hope that it will further encourage them to go away and stop bothering you. However in my experience such companies are not that easy to get rid of. Unlike Getty they will have zero knowledge of the law of copyright and certainly won't spend any money on getting legal advice concerning the validity of your defence.

Nevertheless, I wish you luck, and I hope you let us know how things progress.

Andy

[surfgatinho]

Hi Andy,

Thanks for the info on dealing with Atradius. I'm not entirely convinced about the licensing argument. A little digging suggests, as far as I can tell, that they do have an some kind of interim license:

https://register.fca.org.uk/shpo_search ... h=atradius

Also as they refer to their clients I take it they have not taken ownership of the case.

They do suggest they "will advise our clients to escalate this issue through a law firm" which may be I will invite them to do.

Chris

[surfgatinho]

I replied to Atradius, clearly laying out my case. It seems to have gone over their heads - I think the mention of reverse proxying* to disguise URLs might have done that.

Anyway apparently I will be hearing from their legal representatives in due course.

Now I'm beginning to enjoy myself!




*I actually disguised the URL of the hosted image. Very easy trick if you know much about web servers and effectively means a screen shot with the image URL means nothing.

[AndyJ]

Just to update this thread in case anyone has come here after having a similar experience with Atradius, the FCA's interim licence to Atradius Collections, mentioned by Chris above, lapsed on 06/01/2016 and the company is no longer authorsied as a debt collection company within the UK. If you receive a letter from them which purports to be in connection with recovering a debt you should report it to your local Trading Standards. If a letter refers to a claim (as opposed to a debt) you can safely ignore it, or tell them to go and bother someone else.