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
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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