N.B. The author of this post is not a lawyer or expert in copyright law. This content should be used as a guide only and where commercial decisions are being made about the usage of an image and implications for infringement, you should consult with a lawyer/solicitor before making use of the image. The author  will not be held responsible for any damages occurring from the misuse of any images based on the user’s misunderstanding or adoption of the content below.

If you accept/agree, read on. If not, don’t…

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As business owners/marketing managers, we are always looking for interesting images to highlight content in our marketing materials. It is therefore very tempting to type a related phrase into Google images, find one that matches your subject matter and use it. But this is a mistake that could cost you dearly!

Firstly, this is a massive grey area, but in most cases the weight of law goes with the copyright owner. So if you’re a black and white kind of person then the answer is simple; don’t use images for which you don’t own the copyright or have not purchased a license for its use. Follow that rule and you’ll never have a problem.

However, there is intrinsic protection for the user of an image based on”fair use”, but this is quite specific. For instance, if you run a photography website and you found an image and put it in an article discussing the image itself and it’s good/bad points, then that would be considered fair use. But using an image in a way that helps promote your company is not fair use. So, where do blogs and social media fall into the equation? Before we get to that we need to understand how images are protected.

Almost every image online is protected by copyright law. Someone, somewhere either photographed it, drew it or generated it and so they own the rights to its usage (unless they sold the copyright in its entirety to someone else, in which case the new owner owns the rights). The copyright owner is not necessarily required to register their copyright. For example, in most cases a person who snaps a photo would own the copyright to that image as soon as the photo has been taken. They have to prove that they took the image, but as long as they can provide this, then they own it.

Where a photographer wishes to sell their images, they typically put them up on sites like istock.com, Getty Images, etc and make them available for purchase. If you buy an image you do not own the image, you are simply granted a license to use it. Furthermore, that usage can be restricted to specific activities dependent on the type of license you buy, for instance on a website, but not in adverts.

However, if the image is provided on a website that provides images free from copyright for commercial use without any payment required (and this is clearly stated on the site) then you are free to do what you wish with the image.

If you infringe on an images owner’s copyright by not buying a license for its usage or misusing the image, then that person can pursue you for damages. The size of the damages will depend on the type of infringement and the size of your company/the exposure and so can be anything from a few hundred to hundreds of thousands of Euro/Dollars/Pounds.

Many businesses engage with graphic design companies to deliver web/print/ad designs, so you might naturally think that if they were to infringe on the copyright of an image, you would/could not be held responsible. Well, you’d be wrong! As the ultimate owner of the website/brochure or promoter of the advert, you would be the one that the copyright owner would pursue. They (and the law) don’t care that you didn’t know. They don’t care that you put trust in your graphic design company and assumed that they would do the right thing. You would still be liable for the damages. Of course you would be well within your rights to counter sue your designers, but it’s still a lot of cost and a great deal of hassle. This also applies to what you might consider as extreme situations. For instance, let’s say that you buy a website template from a site/provider and build a website using it. If an image/element of the design infringes on someone’s copyright you will end up paying the damages.

So what about the use of images in social media? Again, this is multi-faceted:

1. Posting copyright images in in your social media posts
   As social media is typically used as a way to grow your customer base and client engagement, it would therefore be construed as a commercially focused site rather than educational, etc. As such your use of any images should be based on this and so you should always use images for which you own the copyright, a license or where you have gained the owner’s permission for its use. You might have seen sites and social media pages where an image is used where credit is given to the person who created the content or disclaiming ownership of the content. This generally will not be sufficient to avoid infringement, so tread carefully. The exception is where you use an image from a site like Flikr and the image has a “Creative Commons” or “Attribution” license applied to it, which simply means that you can use the image as long as you attribute the work to the original owner.
2. Sharing another person’s/company’s post
   A copyright owner would find it virtually impossible to claim damages against an individual or company that simply shared someone else’s post, so you should not have any concerns here.

In summary, don’t try to skimp on spending a few Euro. Buy an image or get one from a legitimate copyright free source (just type in “copyright free images for commercial use” into Google.

“Will This Ever Happen To Me?”

I ran a professional marketing company that provided design services and we followed the rules very closely, so we thought we would never fall foul of any rules. Imagine our surprise when we received a sternly worded letter from Getty Images informing us that we had infringed on the use of an image within a sub-page of a sub-page of a sister-company site in an online demo of their software. Yes, this image was buried deep, but Getty images found it and boy did they come after us!

Their letter did not ask for details or give us the opportunity to take it down. It basically said that we had infringed and they had therefore “calculated” that the damages equated to €800 that we had to pay. However, they were willing to drop this to €650 if we paid within 30 days!

I have therefore included the communication exchange between our companies to illustrate what can happen and the circumstances under which we ended up not having to pay a penny. I won’t go as far as calling this a “scam”, but it is certainly aggressive and felt a lot like extortion.

The below begins with an email response to them responding to their original letter.

Please Note:

• Names have been redacted to protect individuals.
• My company was called The DG Group and the sister company was 21CMS, so they are the names you see referenced in the emails.
• The image in at the top is the image in question and the one discussed in the emails below.

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From: <DG Group Representative>
Sent: Tuesday, June 04, 2013 3:31 PM
To: License Compliance UK
Subject: Image a0117-000215

Dear Sir/Madam,

Thank you for your letter re: image a0117-000215

Can I firstly assure you as a professional company we would never intentionally use images that require a license without paying what is due. We regularly use stock images and are very aware there is a cost involved and always pay licences that apply.  We are also very conscious of the costs involved with purchasing images before incurring costs for either ourselves or our clients.

In this instance we have looked at where the image in question was and removed it immediately. It was uploaded to the images folder only and not showing on any active website front end. The folder where it was uploaded is in the back end of a demo system with no commercial value beyond simply showing users how the system works.

We have no idea who put these images on the system, anyone who may have logged into the system to see how it worked may have added the image. This individual could:

• Have a license for the image
• Downloaded/copied the image from the web and been unaware of need for a license

Unfortunately we will never be able to establish who uploaded this image, but we have removed it and any others that we do not recognise as ones that we originally included in that folder.

We will continue to be vigilant going forward with regards to image use and will also promote this with our client base.

We hope that you can accept our sincerest apology and based on the circumstances of this issue and with the immediate removal of the image/s in question that you can consider this matter closed.

Best Regards

<Name Redacted>
The DG Group

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From: <Getty Images Representative>
Sent: 11 June 2013 17:05
To: <DG Group Representative>
Subject: RE: Image a0117-000215

Dear <Name Redacted>,

Thank you for your email.

Please supply your case number and I’ll review your case.

Kind Regards

<Name Redacted>
Copyright Compliance Specialist

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From: <DG Group Representative>
Sent: Tuesday, June 11, 2013 5:10 PM
To: <Getty Images Representative>
Subject: RE: Image a0117-000215

Hi <Name Redacted>,
Case number is 1358329

Best Regards,
<Name Redacted>
The DG Group

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From: <Getty Images Representative>
Sent: 12 June 2013 16:56
To: <DG Group Representative>
Subject: RE: Image a0117-000215

Dear <Name Redacted>,

Thank you for your email.

Copyright exists upon the moment of creation. The mere existence of the imagery protects it under copyright law. Getty Images represents the photographer who owns the copyright in these images. Getty Images is bound by contract with its contributing photographers to obtain and share the royalties payable for the use of their images and to uphold and defend their copyright in their works. Rights Managed images, such as the ones at issue, are exclusive to Getty Images and available for license only through our website. Therefore, when copyright infringement occurs, Getty Images is entitled to legal redress.

As you may know, it is the responsibility of the end user to ensure that any content that is copied, publicly displayed and/or publicly distributed does not infringe any copyrights.  Regardless of your company’s intent, you are still liable for the unauthorized use of Getty Images represented content.

Although the removal of the image is appreciated, it has been visible through your commercial website.  Therefore, Getty Images and its represented photographers must still receive remuneration for the prior unauthorised use.

In order to settle the matter promptly and amicably, Getty Images is willing to offer you a 20% reduction on the original settlement demand and accept EUR861.00 gross (including 23% IRL VAT as per 01/01/2012) in settlement if payment is received by 25 June 2013. 

Getty Images makes this offer without prejudice and reserves all rights and remedies available under copyright law. Getty Images shall keep the terms of this settlement confidential, except as required by law. 

Kind Regards

<Name Redacted>
Copyright Compliance Specialist

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From: Franco De Bonis [mailto:[email protected]]
Sent: Wednesday, June 12, 2013 5:27 PM
To: <Getty Images Representative>
Cc: <DG Group Representative>
Subject: RE: Image a0117-000215

Hello <Name Redacted>,

I have been passed your correspondence today and as the owner of the business I felt it important that I respond.

I must say that your response is quite shocking and business must be bad if you can spend the time chasing and hounding companies that accidently infringe on copyright through no fault of their own.

The system that these images were found on are not major systems otherwise we would have seen this sooner and removed them. We do not have a Getty account and as <Name Redacted> highlighted, the images had no watermark and so we can be sure of two things:

1)      We did not upload them
2)      Someone, somewhere had purchased the image and uploaded it as a test

This was not used in a marketing campaign or for any other publicity usage, it is simply a mistake made by someone else and we have now locked that part of the system to stop anyone making the same mistake.

I would therefore ask you, most kindly, to reconsider. We are a small company and in excess of €800 will have a big impact on our business. You on the other hand are a big company that doesn’t need to be chasing this type of incident.

I will say this however. If you insist on being unreasonable and on us paying this penalty I will require an exact breakdown of how you come to this figure. I see a price for this image for the usage that most closely matches our demo website of €353. You have certainly piled on the penalties and this really smacks of the ugliest form of money-grabbing I have seen in quite some time!

I will further ensure that everyone in my industry comes to hear about this through every social media channel available to me and will publish the contents of the original letter and this thread through those channels. I promise it will cost you far more in lost goodwill than you will make from us.

If you are reasonable and simply treat this as a well received warning for a first “infringement” then we can all leave it as-is.

I await your response.

Best Regards
Franco De Bonis
The DG Group

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From: <Getty Images Representative>
Sent: 13 June 2013 16:55
To: Franco De Bonis
Subject: 1358329 – 21CMS – IRE CRM:024900840

Dear Franco,

Thank you for your email.

Unauthorised use is not priced in the same way as a previously arranged and correctly licensed image sale. The settlement amount accounts for the losses incurred as a result of the unauthorised use, including, but not limited to, lost licensing fees.  Getty Images has incurred additional losses as a result of pursuit of the unauthorised use, therefore list prices do not apply once an infringement has been identified. If we were to charge the regular licensing fees, we would be encouraging people to infringe. Therefore, Getty Images must, in cases of copyright infringement, pursue these matters in order to dissuade copyright infringement through these measures.

In a final attempt to settle the matter promptly and amicably, Getty Images is willing to increase the offered reduction to 35% on the original settlement demand and accept EUR699.56 gross (including 23% IRL VAT as per 01/01/2012) in settlement if payment is received by 25 June 2013.

To clarify our position, Getty Images is merely seeking to recover license fees that should have been paid had the appropriate license been obtained prior to the start of use which includes our costs of enforcement in this matter.  Unfortunately, the use has already occurred.  As you may know, it is the responsibility of the end user to ensure that the appropriate licenses are obtained for any content that is displayed on a website.

While we have offered to reduce the amount that we are willing to accept, it is our position that our initial demand was a fair offer considering the use in question.  Please understand if we were to reduce the amount further, it would do a serious disservice to our photographers and our other customers. We stand to protect our photographers from copyright infringement even if it was unintentional.  There is nothing more I can do with respect to reducing the settlement amount further.

Getty Images makes this offer without prejudice and reserves all rights and remedies available under copyright law. Getty Images shall keep the terms of this settlement confidential, except as required by law. 

Kind Regards

<Name Redacted>
Copyright Compliance Specialist

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From: Franco De Bonis [mailto:[email protected]]
Sent: Friday, June 14, 2013 1:57 PM
To: <Getty Images Representative>
Subject: RE: 1358329 – 21CMS – IRE CRM:024900840

Hi <Name Redacted>,

I can appreciate the position Getty is in and clearly you must pursue companies who wilfully infringe on image copyright. But you simply have to accept the fact that this is not the situation in our case.

For instance, unlike misuse of an image in an ad where you can easily determine the date of use, I do not believe that you can be sure how long that image sat in the back-end portion of that demo site. It could have been 1 week, 1 month or 1 year, we don’t know, how can you? Equally, the image was not used on the main front-end of the site and was not used in a promotional way in a banner or to highlight an aspect of the product. I cannot therefore see how you can calculate “loss of license”.

I am sorry, but we are simply never going to agree on this point and I still find your “offer” ridiculous. You have not incurred hundreds of euro of costs in “tracking down” this image. If we were being malicious, do you not think that we would have simply changed the title and removed all metadata? Let me reiterate again THIS SITUATION WAS OUT OF OUR CONTROL AND WE HAD NO IDEA THE FILE WAS THERE! Your expectation that we might know every instance of any file uploaded to this back-end system is ridiculous and unworkable.

If you wish to close this matter without further time or cost on your part and without embarrassing public disclosures then I will concede to pay a standard license for this image, but other than this I will not concede and we will then both have to do whatever we must.

Feel free to forward an invoice for a standard license and I will arrange (albeit begrudgingly) to have it paid. I expect this to be between €350 and €400. I can assure you however that no company I own will ever spend another cent with Getty!

Best Regards,
Franco De Bonis,

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From: <Getty Images Representative>
Sent: 14 June 2013 17:13
To: Franco De Bonis
Subject: RE: 1358329 – 21CMS – IRE CRM:024900840

Dear Franco,

Thank you for your email.

Our offer is valid until 25 June 2013. Should you choose not to accept this, my possibilities to help you will have been exhausted and we will need to escalate the matter to our legal department.

I made  an error earlier and have now found the image is still up on your website http://www.21cms.net/site/help-videos/11a1-Uploading-Images.html please remove the image from this video as this will be considered intentional breach of copyright otherwise.

Kind Regards

<Name Redacted>
Copyright Compliance Specialist

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From: Franco De Bonis [mailto:[email protected]]
Sent: Friday, June 14, 2013 11:18 PM
To: <Getty Images Representative>
Subject: RE: 1358329 – 21CMS – IRE CRM:024900840

Hello <Name Redacted>,

When I first received your email it confused me even more because we definitely would not have used any infringed images in a demo.

But then I spoke with the designer that created the video and all became very clear and I am afraid makes your company look very silly indeed.

The image used in the site and in the demo is a standard Windows Vista sample image. Simply type in “windows vista sample pictures” into Google and you’ll see it. In fact, here is a link directly to the image:

Now, correct me if I’m wrong, but if I read the following paragraph (from http://windows.microsoft.com/en-us/windows-live/microsoft-services-agreement)

images, clip art, animations, sounds, music, video clips, templates, and other forms of content (“media elements”) provided with the software available on Office.com or as part of services associated with the software. You may copy and use the media elements in projects and documents. You may not (i) sell, license, or distribute copies of the media elements by themselves or as a product if the primary value of the product is the media elements; (ii) grant your customers rights to further license or distribute the media elements; (iii) license or distribute for commercial purposes media elements that include the representation of identifiable individuals, governments, logos, trademarks, or emblems or use these types of images in ways that could imply an endorsement or association with your product, entity or activity; or (iv) create obscene works using the media elements.

I would assume that a person using these Microsoft public assets and images:

1) can’t extract the images and resell them in a library.
2) customers can’t redistribute the objects / media individually or as part of a library
3) can’t use identifiable individuals, governments, logos, trademarks or emblems in commercial products or as part of your own logo
4) can’t use it in scandalous stuff (porn).

As we have not done any of these 4 things, I would say that our use of this image did NOT infringe on your copyright and in any event it is NOT your copyright anyway and the image came from a Microsoft freely available source.

Furthermore, and despite my in depth knowledge of the web, I count myself as naive in this regard, imagine my surprise when I typed “Getty Images Copyright Letter” and I see thousands of results regarding “scams” and “harassment”. This really clarifies a great deal about your approach to us.

I want to thank you for your assistance in helping me determine where these images came from and I hereby retract my offer to buy a license for this image from you.

I further want to make this very clear:

Getty will cease and desist from harassing my company immediately. What you are doing is outright extortion and the next correspondence you will send me, if you can be bothered, is an apology and confirmation that you are idiots who cannot even figure out that an image is taken from a sample images folder and not used in any way that contravenes a Microsoft EULA.

If I receive any further correspondence to the contrary I will take further legal advice and will further invoice you €1,200 in damages. Unlike you it is very easy to quantify where this fee comes from. I charge €120 per hour for my time and I have spent at least 10 hours to date dealing with your extortionate false claims. Unlike you, my payment demands will not decrease but will increase with every additional hour I spend dealing with your nonsense.

In any event, I will be posting this onto every social media platform I can.

Shame on you Getty. <Name Redacted>, do yourself a favour and get a job you can be proud of, rather than harassing people.

Franco De Bonis
The DG Group

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We heard nothing from Getty after that last correspondence and therefore, after more than 6 months had passed, we could only assume that they dropped the case. They were not even decent enough to confirm this in writing and apologise for the confusion and stress caused!

Moral Of The Story

1. If your blog/web page is linked to a commercial entity in any way, DO NOT use images you find online unless you have the express permission of the copyright owner to do so.
2. You can use copyright free images
3. If you receive one of the ‘Getty Extortion/Scam Letters’ check the source of the image carefully
4. You do not have to knowingly infringe to be in breach
5. Google as much as you can on this subject to see how others have dealt with it – there is no shortage of information and examples!

Good Luck!

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