Legal Question in Intellectual Property in California
Photo Copyright Infringement Question
My Internet services business published a picture of a customer service representative on the upper right-hand corner of the hosting page. (2 years ago) I found the image though a Google image search and did not ask for permission to use it. I have earned money from the site since using this photo. Today (9/3/05) I received a letter from Getty Images, www.gettyimages.com, notifying me that they are the license holder for the copyright owning photographer. I did a search in their catalog and found the photo. They want me to pay them a $750 license fee to cover past use since 6/15/05. They included a printed image of my site with the photo dated 7/19/05. They waited three months to notify me and are charging me the license fee for this time period. I have immediately removed the image from my site upon receiving notification. I�ve researched the situation and am unsure about the consequences and best course of action. Should I: 1. Notify them that I have removed the photo and not pay the license fee since they did not immediately notify me of copyright infringement. Or 2. Notify them that I have removed the photo and pay the license fee so as to avoid getting sued for copyright infringement which could be more costly.
2 Answers from Attorneys
Re: Photo Copyright Infringement Question
Liability for copyright infringement doesn't require that the infringer be notified. Stealing an apple every morning from the grocer's outdoor display is no less theft because he doesn't notice and complain.
The sum they're asking may be excessive, and you could certainly try to negotiate for a lesser settlement on the ground that your profit from purloining the picture wasn't anywhere near that much. However, you can't complain about late notification unless (1) the statute of limitations has expired with respect to a claim for the earlier months of infringement, which it probably hasn't; or (2) they were aware of the infringement and deliberately delayed bringing a claim in order to let the meter run.
A suit for $750 is somewhat unlikely; it's not economical to pursue so small a claim. I suggest responding to their demand with an offer to settle for a much lesser amount and a promise not to use any of their material in the future.
Re: Photo Copyright Infringement Question
I don't agree with attorney Whipple that you ought to settle. You ought to hire an attorney to write them a letter on attorney letterhead telling them to go pound sand. There is such a thing as oppressive use of the copyright laws, and it is not clear that a federal court (copyright cases must be filed in federal court) would award Getty anything on this claim even though they might have a technically meritorious claim for copyright infringement. As an example, a frizzy-haired boxing promoter sued numerous taverns in California for allegedly screening videos of the promoters' prize fights. Frizzy-Haired Boxing Promoter was so aggressive in pursuing these little beer bars that the court ruled in favor of the bars on their countersuits and Frizzy-Haired Guy Productions had to pay damages. The federal courts are very busy and the facts that you removed the image immediately, that Getty waited to inform you, and that Getty did not suffer significant actual damages would (in my opinion) work in your favor.
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