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The Copyright Cow Blog focuses on the untold stories of the second largest export of the United States – intellectual property and technology – through the lenses of law, economics (freaky-economics) and society. Intellectual property is comic books, cartoon characters, the “Book of Life” embodied in the Human Genome, medicine, technology, movies, websites, and, for example, the business of producing and distributing milk (a Copyright Cow favorite). The Copyright Cow BLOG is not only for your local dairy farmer / rancher in Washington state. It is also for the CEOs of Microsoft, Boeing and Getty Images. Although Copyright Cow is a great read for any business owner, it is also good for mothers and fathers, teachers and students and anyone who wants to know more about the legal and economic forces shaping 21st century America. The law can decide, who lives and who dies; who eats and who starves. Who gets the latest HIV medication and who does not? Who owns the critical intellectual property that, literally, holds the key to life and death for over 50 million people? What about the economic and social forces that help to shape the law and also result in both prosperity and misfortune? With the help of Copyright Cow, we will all be better prepared to answer these questions, shape a better future and hopefully be a little happier! With your help, the reader, Copyright Cow can continue to help defend the American Dream!
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Copyright Infringement Letter for Images on
YourWebsite
Photo agencies such as Getty Images and Corbis Images are known to be persistent copyright enforcers. They rarely grant complete clemency to organizations once they begin pursuit of claims. The following nine tips are offered by attorneys who deal with these types of copyright cases; they give
ADVICE ON WHAT TO DO* once your business receives a Corbis Images copyright or Getty Images demand letter. 1. Copyright Infringement is a Serious Matter.
2. You Shouldn’t Ignore a Letter Notifying you of your Infringement
First things first, copyright infringement is a serious matter. Mere use of a picture downloaded from the internet, even from a “free site,” is enough to create liability for a business using the copyrighted work without permission. Copyrighted works that typically get businesses into trouble for copyright infringement include images and text “acquired” from the various websites on the internet.
Ignoring a notification and/or cease and desist letter is a bad idea. Ignoring a copyright demand letter causes the valid copyright holder to expend additional resources to protect their copyright. Expending additional resources causes the valid copyright holder’s monetary damages against your business to increase. Ultimately this will increase the amount your business will have to pay in a copyright infringement law suit. Also, under federal law, a copyright owner can be entitled to $150,000 per willful infringement.
WILLFUL INFRINGEMENT Means that you knew about the copyright infringement and did nothing about it. Simply put, ignoring a letter from a photo agency such as Getty Images is not a good idea. 3. Copyright Infringement Demand Letters are Normally Pretty Reasonable. The terms of the photo agencies’ cease and desist letters are normally pretty reasonable. For example, Getty Images’ general policy is only to be put back in the position they would have been but for the copyright infringement. * LEGAL DISCLAIMER: The information contained in these pages is provided for general guidance and informational purposes only . It does not constitute legal advice nor create an attorney-client relationship. Given the changing nature of applicable laws, there may be delays or revisions to the information contained in this site. Our firm makes no representations as to the accuracy of information contained in third party websites linked hereto. If you have questions or concerns about your legal rights or the laws noted abo ve, you should consult with an attorney.
5. You’re Liable Even if You Didn’t Know You Infringed a Copyright. Copyright law prohibits both accidental and willful copyright infringement. As stated by one federal court recently, The cost of de“there is no need to prove anything about a defendant’s mental state; [copyright infringe- fense, retaining a defense lawyer, ment] is a strict liability tort.” A strict liabildealing with ity tort is a legal wrong that does not require a “mental intent.” In other words, a copyright jurisdiction and owner does not need to prove a defendant preparing an an. intentionally infringed the copyright in order swer will cost in the range of for the defendant to be liable because it is a “strict liability” tort. If you copy a picture $7,500 to $20,000. from the Internet without permission, for example, you can be liable for damages even if you did not know the picture was copyrighted. Further if you hire someone, such as an employee, an independent contractor, or a web designer, you are also liable for using the pictures that third party posed to your website even if you were unaware of what they did. “there is no need Thus, the business displaying the copyrighted work without permission on their website is liable as the end user of that image. In short, the old adage, to prove anything about a de- “ignorance of the law is never an excuse” applies to copyright law because fendant’s mental even if you did not know, you might still be liable for copyright infringement. Most legitimate business want to do the right the thing and get these state; [copyright claims settled. If the same thing happened to them, they would feel the same infringement] is way. a strict liability
A photo agency’s life blood is their copyright protected images
This means they are only looking for the licensing fees that should have been paid for the time period the infringing photographs were on your website and any additional cost of pursuing the matter. Unless litigation is initiated, they are typically not looking to collect statutory damages if they are able to settle with the infringing business. This alone is a good reason to get the matter settled early. 4. Litigation Will Lead to Statutory Damages. Under federal law, a copyright owner can be entitled to damages between $750 and $30,000 per infringement. If it is shown that the infringement is willful, the law allows as much as $150,000 per infringement. Each image identified on your website can be considered a separate act of infringement. Recent jury awards have ranged from $675,000 to in excess of $1 million dollars in damages for copyright infringement. Recently, one jury in Western Washington awarded over $1 million dollars in damages for the unauthorized use of as few as five photographs. The general theme here is the matter gets worse the longer an infringer puts off dealing with it.
tort.”
6. Don’t Believe Everything You Read on the Internet There are some sites on the internet that spread false information about these types of claims. Any nut with a computer can type something on a blog. As any librarian would tell you, “buyer beware.” This is especially true of information acquired from the internet. Once scam site even notes that Getty Images never sues companies. This claim is absolutely false. It is a matter of public record that Getty and Corbis do sue companies. In fact, they sue large companies and small companies and they pursue large and small claims. Any site that says differently is suspect. Beyond the public record, let’s look at the Example of Getty Images case seeking statutory damages for one image. economics. Say a company has a copyright infringement claim of between $2,000 and $20,000. I know that is quite a range but the economics work out the same! The cost of defense, retaining a defense lawyer, dealing with jurisdiction and preparing an answer will cost in the range of $7,500 to $20,000. It will be more in some cases! After that (the first month) you have
one hundred
18 more months to go! The total cost could be ten to times that. When the attorneys’ fees are applied, the business being sued is out of business. Why would the image companies pursue me? You are not the only one. Sometimes an image company might even be required by contract to pursue the infringements.
EXPERIENCED
EXPERI I M A G I N AT I V E
INVENTIVE
NventI Timothy B. McCormack At t o r n e y At L aw
206-381-8888 617 Lee Street, Seattle WA 98109
Photo Agencies, such as Getty Images, are Well Represented, their experts and lawyers know copyright law inside and out
If you do not pay for the use of their photographs, you are stealing their product. It would be similar as if someone walked into your store, grabbed a product off the shelf, and walked out with it without paying. A just and moral society can’t operate peacefully on such behavior.
A good general rule of thumb is, “if you did not take the picture, you need to pay a license fee to use the photograph.”
Don’t take a chance on getting embroiled in litigation. The only winners will be the attorneys (on both sides). Keep that in mind when getting advice from the internet. What incentive does a blog have in telling you that you won’t get sued? One cynical answer is that they want you to get sued so they or associated “ambulance chasers” can earn fees on your misfortune. 7. Photo Agencies Such as Getty Images Are Well Represented. A photo agency’s life blood is their copyright protected images. One of the largest photo agencies in the world is Getty Images. Getty Images is an efficient organization when it comes to extracting damages from companies found to be infringing their copyrights. The bottom line is, their experts and lawyers know copyright law inside and out because that is all that they do day in and day out. Generally speaking, these representatives are easy to work with and professional; it is better to work with them as opposed to against them. 8. A Moral Decision Copyright infringement is prohibited by law. But more importantly, copyright infringement is morally wrong. Photographers earn their livelihood through licensing photographs.
Timothy B. McCormack is a Seattle-based attorney with substantial copyright and copyright litigation experience, involving Corbis Images and representing Getty Images and well-known photographers. Mr. McCormack represents Getty Images and has defended cases involving copyright claims from Corbis Images.
9. If You Can’t Get it Resolved, Consider … If you do find yourself facing a copyright infringement claim, all is not lost. In some cases, a standard business liability insurance policy (“slip and fall” policies) will cover copyright infringement claims made against a business. This special coverage, which is included in many business policies is often called “advertising insurance.” Ask your insurance agent if you have such coverage. Finally, if you are uncertain of what steps to take, contact a knowledgeable attorney.
ABOUT COPYRIGHT COW™ Copyright Cow™ is the Blog and alter-ego-Blogger name for Timothy B. McCormack, a well established and successful Seattle-based intellectual property, technology and business lawyer.
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