Wednesday, July 24, 2013

Any Defense from Getty Images Claims?

Dear Rich: My company purchased several images from Getty Images for a client about six years ago. We used pieces of the project as a self promotion on our website. Getty License Compliance contacted us about it and we immediately removed the image from our site. Now they are nicely asking me how long the image was on the site because they want to collect for the usage. Do I have any defense in this case? If we could see into the future, we visualize you writing a check to Getty Images. You may have a reasonable defense -- fair use based upon your use for self-promotion (the equivalent of creating a resume) -- but chances are that when you measure your chances of success and compare that to the expense of a lawsuit, you'll find yourself reaching for your checkbook.
Getty isn't just chasing you ...  Getty is very active as a copyright enforcer and pursues approximately 40,000 instances of infringement in the United States each year. However, according to Getty, the company disfavors litigating:
"For cases of identified infringement, Getty Images typically attempts to recover damages in the form of lost license revenue and enforcement costs. Damages sought vary depending on the image used, and the nature and duration of use. Typical damages range from several hundred to several thousand dollars. While many of these cases are resolved amicably, many others are not. For those cases that are not resolved, litigation is available, but is prohibitively costly for either Getty Images or its individual contributors. The costs associated with litigation far outweigh the damages sought, and render litigation a completely ineffective option, unless a rights holder elects to make the investment to make an example of an infringer, regardless of the economics of the process."
If this is an accurate statement of policy, then a strong fair use defense that's part of a court case may achieve a more favorable settlement, particularly if Getty fears a precedent-setting decision about fair use of its images.  You can compare the facts in your case with other photo fair use cases and if you feel you have a decent fair use defense, consult an IP lawyer for confirmation. (You may also find this advice to be helpful.)

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