Ask LH: Can I Be Sued For Using A Copyrighted Photo On My Blog?

Hey LH, I recently received what could be described as an extortion letter from Dun & Bradstreet on behalf of Getty Images. I work in a school where we have a website dedicated to providing newsletter content to our parents. In one edition of the newsletter, I used a generic image that is apparently rights managed by Getty. I've since been asked for an outrageous $915 fee for using a 400px image.

I took down the image immediately, but they say that's not enough. I don't want the school to be extorted - what's my recourse if they don't like the "s115 (3) of the Copyright Act 1968" defence? Worriedly yours, Mr Ed.

Copyright picture from Shutterstock

Dear ME,

Short answer: Yes, you can be sued, but that doesn't always mean that it will go that far.

The issue of online copyright management is an absolute minefield, as your case solidly shows. Getty's entire business case is built on preserving the rights for the images it holds copyright to, and it tends to pursue that with more vigour than many other copyright holders.

As such, this isn't legal advice, and depending on the precise circumstances of the image, how you came by it and how it was used, it may be wise and indeed even necessary to seek formal legal representation.

With that out of the way, it's clear online that Getty quite often makes legal challenges for images it may hold some but not all rights to, and in many cases it appears that it uses form letters that don't take into account any other considerations that may in fact sink a case were they to pursue it fully to court.

Presuming that they do hold the full rights (for the sake of argument) they're entitled to pursue for copyright damages if you've used an image in an infringing manner, but equally you're entitled to defend against it.

Naming and shaming can also be a powerful strategy, as was the case when Getty went after a church in the UK. Getty's position appears to be that they'll pursue a lot of these cases only so far before dropping them, but that's not an absolute guarantee that they'd drop yours if you refuse to pay their claims.

In terms of copyright defences, you've got a couple of avenues that I can see.

Section 115(3) that you've highlighted relates to any given profits that may have been accrued through use of the image; it's not clear if you're working for a public or private school, where the definition of "profit" can of course vary, and could indeed be a solid legal strategy.

It's also worth mentioning to Getty that you may be covered under the fair dealings provisions of Australian copyright law as an educational institution using the image, although that could fall over depending on the view of a "reasonable" part of the work.

The longer form view — and one that's certainly worth pursuing for any future newsletters — would be to ensure that any other images you're using are clearly defined as copyright free from the source you acquire them from, such as the vast number of images released under the various creative commons licences.

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Comments

    Same thing happened to me at work. I got an e-mail notice from Getty Images saying we were using 5 unlicensed copies of their image on our website and would need to pay a total of $7,975!!! (5 images, $1450 per image + GST). We sent Getty an e-mail saying we'd be happy to reimburse them for the licensing cost of the images, as the website was designed by a third party web design firm and we had absolutely no idea that the images used were unlicensed.

    Getty came back to us, spewing all sorts of bullsh*t about punitive damages and what not. We told them that it was entirely unreasonable for them to be asking that kind of money for 5 images, and requested to see a breakdown of how they came to that figure. We also added, if necessary, we'd happily take them to court and then they could explain to the judge how 5 non exclusive, stock images could cost almost $8,000.

    This happened in 2012 for a website that was live in 2009. They never got back to us. If you google "Getty Images letter of demand" you'll find that it is a common scam from Getty to extort money out of people. Asking for the license fee when an image has not been licensed is absolutely fair enough you should be liable to pay $40-$50 for (or how much ever the image costs). Asking for more than $900 is definitely not. Challenge their notice. I highly doubt it will be cost effective for them to take you to court over 1 small image.

    Good Luck.

    OTOH, ignorance is no defence. It's easy enough to find CC images to use, rather than stealing them.

      For all the wonderful things the internet has provided us with, and all the wonderful things it allows us to do, it has provided many with the sense that many things are free and just a google search away. At some point, someone has taken a photograph, or drawn, painted, filmed, coded or written a creative work and deserves something (or at least the opportunity to give it away) when someone else wants to use or consume their work, even if that 'something' is just ad revenue from a website or simply recognition of their work.
      If you think about these things as creations of people, rather than 1s and 0s, it becomes pretty easy to go and find CC works to use, or to seek permission for their use.

      That's true, but not everything under a CC license is legit. My wife found one of her digital paintings on http://sxc.hu (a free stock website which hosts some really good free stock images). Three people had used it on their site, and happily took it down once we explained to them that it wasn't stock. SXC also took swift action once we proved it wasn't stock.

      So it's very easy to find an image on a free stock site and use it, not realising that it's actually copyrighted.

        Yep, that's for sure, but at least they've tried to do the right thing, which usually means that if they haven't, they'll fix it.

    What size is the original image? You said yours was 400 pixels wide. If that's a tenth of the size of the original, you may get away with fair use.

    Read the link about the church mentioned - and see if you want to follow that route.

    I've heard that a lot of these image selling companies make a huge chuck of their income through scouring the web and using this tactic.

      Awesome! So I can use any image on my website as long as it's 400 pixels wide. No need for any pesky permissions. I can't believe more website's aren't taking advantage of this. Time to put up my photos of Elvis, Lucasfilm, Steve Jobs and the entire Australian Cricket Team.

      Website is going to be manic, ma.

        Did you miss the "If" and "May" qualifiers of darren's post?

        If they are your photos, sure, put them up. No issue with that.

          Even if they are your photos, you can't use people's images or images of copyrighted properties unless they are for editorial usage. For instance, you can't have a photo of Captain Jack Sparrow chatting to fans and use that photo to say: "Even Capt Sparrow uses Acme hair care - buy now."

    I spent a small fortune on all the branding, photos and graphic design for my small businesses web site... so no issues with dodgy stock image firms chasing me for using their photos. However my web site and photos now look so awesome (if I don't say so myself) - that my competitors are literally stealing photos of me from my web page to use on their web sites!!! Every time so far all it's taken was a polite phone call to the business owner and they are taken right down... every time the same excuse "oh my web dev chose all the photos"... bullshit.

    I'm no lawyer but my impression is that a case would hinge on intent.

    If the image was nabbed from Getty's server without a paid licence (and they could reasonably prove as much) then the OP would be bang-to-rights. But if it was found in the public domain (e.g. via a Google Search) then it might come down to whether the OP gained from using that image (unfortunately, ignorance of copyright is no protection from it).

    If it was used for commercial purposes or profit, then Getty would certainly have reasonable grounds to claim damages ... otherwise there would be no point having IP protections.

    But it sounds here like it was just for illustrative purpose and no profit or gain was obtained. In which case, a simple cease-and-desist could be argued provided the image was retracted immediately and not used again.

    From the pragmatic point-of-view, for a large company like Getty it would hardly be worth pursuing this relatively small amount of money. It would, however, be much more worthwhile adopting a heavy-handed scare tactic to discourage people from breaching IP law in the future.

      Finding something via a google search does NOT mean it is "public domain," not at all.

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