Help - breach of copyright?

[superlightr]

Advice please.

In Vista/pictures/sample pictures are some pictures. I have used one in our web site. Is this still breach of copyright when they came with vista and listed as sample pictures?

I have been asked to pay £1700 fee for this 'breach' but when I look at their site the cost to be licenced to use this image would be about £39.

We do pay to use pictures but did not for this one as it came as a sample in vista.

Thanks

[EmmaP]

I would have thought (think not know) it would depend on their definition of 'sample' and whether or not that 'sample' was protected by copyright. Did you not check the small print and copyright details on their site first?

[Simpo Two]

I think 'samples' means images to experiment with privately (eg tutorials) and not free for commercial use.

How MS find you?

[crmcatee]

I'm guessing that it's MS that's found you out.

You've bought Vista which means you've bought a licence to use the software - you don't have a licence to use the images outside the software.

MS own took the copyright of images that they sourced elsewhere (probably paying for them or trawling Flickr etc and asking people to contribute images towards Vista). They paid the owners no doubt to own the copyight of the images allowing them to do with them what they want.

Allowing users to use the images elsewhere (outside the confines of the software) is not part of the licence you agreed to when you opened the wrapper and click on the T&C's (which no-one ever reads).


Just my tuppence worth.

[superlightr]

Hi

It is from Getty writing.

the image was from my computer which came with Vista preinstalled.

C:\Users\Public\Pictures\Sample Pictures

Its listed as a public picture. I use vista business. There is no details of any restriction with the picture or in the help menu. Have a look on your pc.


Any views on the amount. I understood that even if a breach has occured they cannot charge more than they would have got if you had been licenced.

Thanks for the help.

Edited by superlightr on Thursday 7th February 12:49

Edited by superlightr on Thursday 7th February 12:53

[superlightr]

EmmaP said:

I would have thought (think not know) it would depend on their definition of 'sample' and whether or not that 'sample' was protected by copyright. Did you not check the small print and copyright details on their site first?

I didnt copy and paste from a web site. Clearly that would be wrong.

It is within vista a public photo/sample picture hence beleived it was ok to use.

Edited by superlightr on Thursday 7th February 13:11

[EmmaP]

superlightr said:

It is within vista a public photo/sample picture hence beleived it was ok to use.

Ah! I understand now as I didn't know what Vista was. It is generally wise to never ever use anyone's images without asking first.

Slightly O/T, I always ask clients if I can use photographs - that have been commissioned by them - on my website or in presentations. It isn't really worth the risk in an age where everyone sees suing as a way to make a fast buck. You also have to think of the knock-on effect from their client to your client.

[JustinP1]

There is a similar thread to this in the SP&L section.

There seems to be 'bounty hunter' type companies who either do or do not have authorisation from the companies they represent to scour the net for infringements and demand an amount for their 'legal costs'.

My advice in that thread is to stop using the infringing item immediately and respond by telling the company that you do not recognise you have done anything wrong - DO NOT go into any more detail than this, and let them know that as a gesture of goodwill however, you have already removed the image and will not use it in the future.

After that there is no evidence for the company to take you to court with, and secondly it will be nigh on impossible to prove the damage of £1700 through its use. The client in this case has already had their interests protected, and therefore will have no motivation in authorising the company to chase you legally.

Its the scattergun approach. Some people *will* pay up straight away. Just act quickly, and their impetus will flounder.

[sgrimshaw]

Offer to pay the license fee and apologise for the oversight.

If they accept, fine and dandy.

If they refuse, remove the image immediately from your website and ignore their fee claim.

You'll be able to show that you mad every effort to rectify the situation as soon as it was brought to your attention, should they attempt to take it further - which they probably won't.

[superlightr]

JustinP1 said:

There is a similar thread to this in the SP&L section.

There seems to be 'bounty hunter' type companies who either do or do not have authorisation from the companies they represent to scour the net for infringements and demand an amount for their 'legal costs'.

My advice in that thread is to stop using the infringing item immediately and respond by telling the company that you do not recognise you have done anything wrong - DO NOT go into any more detail than this, and let them know that as a gesture of goodwill however, you have already removed the image and will not use it in the future.

After that there is no evidence for the company to take you to court with, and secondly it will be nigh on impossible to prove the damage of £1700 through its use. The client in this case has already had their interests protected, and therefore will have no motivation in authorising the company to chase you legally.

Its the scattergun approach. Some people *will* pay up straight away. Just act quickly, and their impetus will flounder.

Thanks for all the replies. I feel the same.

Should it not be the owner of the copyright not this 3rd party? albeit Getty.


They have a poor quality screen shot of a web page which is hard to make out anthing on. (although we have used it) The image used is a thumb sized on our web site. It has been removed the day we got their letter.

If it did go to court, would they have to prove damages suffered were £1700? compared to their normal licence of £39.

Does Getty have the right to sue on behalf of the owner? should they not provide proof of this?

Is the public photos in vista a defence?

Edited by superlightr on Thursday 7th February 13:54

[tog]

In the UK you cannot be fined punitive damages for copyright infringement. You can only be fined what they have lost - ie the appropriate licence fee - plus their costs.

[AlexB]

superlightr said:

Should it not be the owner of the copyright not this 3rd party? albeit Getty.
.....
If it did go to court, would they have to prove damages suffered were £1700? compared to their normal licence of £39.

Does Getty have the right to sue on behalf of the owner? should they not provide proof of this?

Is the public photos in vista a defence?

The fact that the photos are in a directory called public on Vista is no defence - all images are protected by copyright and you require permission to copy them.

The letter from Getty should set out that they are the owner/licensee of the copyright in that image and how they derived that right and the right to sue (if they are not the owner!) - they should also provide evidence of the date of creation of the image so that you know that the copyright term has not expired.

IF this went to court you could be found liable for their costs and damages - High Court costs are substantial (and the money awarded rarely covers the full costs as I understand it) so it is unlikely that they would take it that far.

You could remove the image and not respond. If you get a further letter state you had already removed the image as a gesture of goodwill to avoid further problems and suggest that you will not correspond any further until they have provided evidence that they have the rights in the image to be able to come after you - you could offer the licence fee to try to make them go away, but they might just take that to mean you are an easy target.

If it gets more serious then you should really speak to a Solicitor (or Patent Attorney) that knows about Copyright for further advice.

Good Luck
Alex

[superlightr]

Why high court not the county/small claims?

[joust]

tog said:

In the UK you cannot be fined punitive damages for copyright infringement. You can only be fined what they have lost - ie the appropriate licence fee - plus their costs.

Whilst this has been consulted on by the DCA I don't believe that has actually made it into law yet?

The consultation is here
http://www.dca.gov.uk/consult/damages/cp0907.htm

Given this, it would be highly unusual for a court to award punative damages given the statements from the government about their intentions.

My advice would be to remove the item and write back saying that you have done so, and that they should provide evidence of their loss relating to their claim. As above, if they really press and do prove it, offer them the £40.

It would be exceptionally hard for them to progress it any further, and for £40 it'll give you an easy life!

J

Edited by joust on Thursday 7th February 17:23

[crmcatee]

superlightr said:

Should it not be the owner of the copyright not this 3rd party? albeit Getty.

I think you'll find that when you installed Vista - the T&C blurb said that the images were actually copyright Getty - hence they're the ones chasing you. It's their copyright.

Relatively easy to search google images for the filename that's included within Vista and find it that way.

[superlightr]

joust said:

tog said:

In the UK you cannot be fined punitive damages for copyright infringement. You can only be fined what they have lost - ie the appropriate licence fee - plus their costs.

Whilst this has been consulted on by the DCA I don't believe that has actually made it into law yet?

The consultation is here
http://www.dca.gov.uk/consult/damages/cp0907.htm

Given this, it would be highly unusual for a court to award punative damages given the statements from the government about their intentions.

My advice would be to remove the item and write back saying that you have done so, and that they should provide evidence of their loss relating to their claim. As above, if they really press and do prove it, offer them the £40.

It would be exceptionally hard for them to progress it any further, and for £40 it'll give you an easy life!

J

Edited by joust on Thursday 7th February 17:23

Thanks -sorry for the wake up call from hibination!

Letter sent as described above, ie unaware we had done something wrong, dont beleive we have but for goodwill have immediatly removed the image and wont use it in future.

Will see what happens. Im sure that as they are preinstalled in vista and a public folder but with no warnings anywhere in/near the picture I could argue it was a genuine mistake, that I took them to be public pictures ie unrestrictive. I didnt take them from Getty, they were given in the OS.

Next step will be to ask them proof of ownership/copyright. I think they think I took it from their web site which I didnt. Happy to pay 39gbp if we need to, but it needs to go to the owner which is not necessary Getty.

Is it the High Court rather than county court?

[superlightr]

crmcatee said:

superlightr said:

Should it not be the owner of the copyright not this 3rd party? albeit Getty.

I think you'll find that when you installed Vista - the T&C blurb said that the images were actually copyright Getty - hence they're the ones chasing you. It's their copyright.

Relatively easy to search google images for the filename that's included within Vista and find it that way.

Dont think I signed/ticked any boxes as the pc has Vista already installed and up and running. I understand that images are generally licenced/copyrighted but as these were in this particular folder, I took it to be unrestricted.

The image was not sold, or printed, just used as a thumb nail on the website next to a description of some property details. rather than a blank pic, something pretty. Hence finding the pic in the pictures/public folder. There was no link back to getty in Vista near the image or in its decritption/properties etc.


As for a loss If we had got it from Getty it would be about 39gbp . So cant see how 1700gbp comesinto it.

Edited by superlightr on Thursday 7th February 19:23

Edited by superlightr on Friday 8th February 11:32

[AlexB]

superlightr said:

Is it the High Court rather than county court?

I think it can be either, but it would be up to them where they brought the action if they wanted to take it that far.

Alex

[JustinP1]

AlexB said:

superlightr said:

Is it the High Court rather than county court?

I think it can be either, but it would be up to them where they brought the action if they wanted to take it that far.

Alex

To be honest, I bet this goes away quickly.

If anyone is familiar with the 'Private Parking Fines' threads on SP&L the guys running these things arnt lawyers, and they never go to court, they rely on sending out nasty letters and wait for the reasonably high ratio to pay up without any hassle. They dont go to court as it is easier for them to spend their hours getting the details of 10 more potential 'finees' of which 7 will pay up rather than chasing up the single one through costly action.

I am willing to bet that this is the same. I honestly cannot see solicitors flying across the atlantic to take the OP to court over a thumbnail or an image they have already distributed to people for free tens of millions of times.

Its farcical. As is the determination of costs of £1700. This could all actually even be a scam set up by a third party. They pretend to be working on behalf of one of the biggest companies in the world and wait for enough people to wire the funds to their bank account! No- one is really going to ring up MS directly in the hope they can speak to one of the hundreds of thousands of employees who know about the action - they will deal with the third party direct.

After all, they wouldnt take anyone to court, so how would they be found out? No- one is going to admit they were scammed, as this would mean they are also admitting to real infringement which they could be legitimately chased for again.

Its a pretty clever scam I reckon.

[joust]

AlexB said:

superlightr said:

Is it the High Court rather than county court?

I think it can be either, but it would be up to them where they brought the action if they wanted to take it that far.
Alex

Anything under £15k must be started in the County court. Given this is "simple" the small claims court would be given jurisdiction.

http://www.adviceguide.org.uk/index/your_rights/le...

FYI, the actual act is very clear about the reasons you can bring a claim

Copyright, Designs and Patents Act 1988
97.(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(2) The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to
(a) the flagrancy of the infringement, and
(b) any benefit accruing to the defendant by reason of the infringement, award such additional damages as the justice of the case may require.

This is why so few Internet image cases actually end up in court. Whoever is persuing you would have to prove flagrancy and benefits accrued. This is not like someone who pirates CD's and sells them. There are no real benefits accrued of having that image on your site.

I've asked a few people and AFAICT they have never wanted this type of claim tested in court. An expression springs to mind...

J