Legal Question in Intellectual Property in Maryland
In the fall I downloaded a photo from a Google search and used it on my internet site. This month I received a letter from Getty Images saying that I used their image and did not receive permission or pay for the rights to use it. They are asking me to pay $580 for the rights and to take the photo down (unless I want to pay for further use).
My question is, since I had no idea I was using their photo, and I took it down immediately, should I have to pay them?
Thanks!
3 Answers from Attorneys
Copyright infringement is strict liability, you do not have to know you were infringing to get in trouble for it. Anyway, pulling an image off Google Images is pretty reckless as far as copyright infringement goes. You are pretty much guaranteed to be committing copyright infringement when you do that. $580 may not be a reasonable amount, but if you do not pay you can expect them to continue sending you letters for a while, at a minimum.
Clifford is right about strict liability. But you did not mention how the photo was used. Not all uses are within the exclusive rights of the copyright holder, which rights are all "subject to" the limitations and exceptions in Sections 107-122 of the Copyright Act. Specifically, you might want to take a look at Section 107, at http://www.law.cornell.edu/uscode/text/17/107, and make a determination whether your use might constitute fair use, which is not infringement. The line of demarcation between fair use and infringement is not very clear, however, so if there is any doubt at all, the in terrorem effect of the penalties will give Getty Images an unfair bargaining advantage, as the risk of guessing wrong is higher for you than for it. On the other hand, Getty Images is in it to make money. If they can make more money licensing the image to you for future use than a one-time payment for past use, it might work to your advantage. Good luck.
Getty has a reputation for not following appropriate legal processes. I would need to see the specific image as well as the claim being brought against you. You need to take action since this may affect your reputation and can result in a default judgment if not represented. Depending upon the access through which you acquired the image, you may have a claim against Getty especially since you have ceased using the image upon receipt of the notice.
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