As part of my research into finding answers I obviously searched also for legal replies and views. One of the better ones was at justanswer.com and certainly reading this gave me the  faith that I would find a solution. The example cases cited are also very interesting as they serve to form a framework on which us lesser mortals can base our own decisions of right and wrong in such copyright cases on. 

Furthermore the answers given here do eventually lead to exactly the same method that was used to conclude my own problems with Getty Images and their demands for payment. In my case however I was luck to find a lawyer who took car of everything also.

Resolved Question:

We have received a letter from Getty Images demanding money for use of images on our web site. I really didn’t know the images were owned by Getty. We have had several letters going back and forth and their demand has since fallen from the initial £ 1900 to £ 1550 although we have offered £ 1000 to end the claim. They have failed to answer letters and I have had to chase on several occasions. All letters were sent via recorded delivery. I just need to know what I should do next and don’t mind having to pay a small amount for advice/letter. Regards, XXXXX XXXXX Director, Boxred Marketing Limited

Submitted: 2 years ago.

Category: UK Law

Expert:  Joshua replied 2 years ago.

Joshua :Welcome to JustAnswer! If you’ve queries once you’ve read my answer do ask. When satisfied, please kindly click the Green ACCEPT button.

Joshua :Did you £1K offer have a time limit attached to it please?

Customer:No it was made on 13 February and rejected by a solicitor they have employed on 27 February

Joshua :Thanks. That it has been rejected is a good thing. Keep a copy of the rejection. It is likely far more than you would need to pay.

Joshua :You should revert to Getty and advise that you had and have no intention to infringe upon the copyright. Ask them to substantiate their claim to copyright of the images and advise on receipt of this you will remove them from your website – if you have not already done so. You could also ask them for pricing information as they would most likely be prepared to licence you to host the images for a fee as this is their business.

Joshua : Subject as above, copyright is an automatic right and arises whenever an individual or company creates a work. To qualify, a work should be regarded as original, and exhibit a degree of labour, skill or judgement. A photograph could well be subject of copyright which just leaves them proving they are the owner.

Joshua : They may be able to claim the amount you would have had to pay for a licence to use these images. What they claim is adventurous in this respect and tends to be a speculative action on Getty. This is supported by case law:

Joshua : In Stovin-Bradford v Volpoint Ltd [1971] Ch 1007 it was stated at 1016 “The defendants took the plaintiffs plan and took it as if they had a licence to use it as they pleased – to take so much of it as suited them and leave out what they did not want. They ought to pay as damages an amount equivalent to the fee which they would have had to pay for a licence”.

Joshua : Copinger at 22-163 states in cases where the right to exploit the Image is by way of licences for royalty payments, “If the infringer uses the right without a licence, the measure of damages is the amount he would have had to pay by way of royalty instead of acting illegally”.

Joshua :In General Tire and Rubber Co v Firestone Tyre and Rubber Co [1975] FSR 273 it was said that at 274 “damages should be assessed so as to put the injured party in the position he would have been in if he had not sustained the wrong, and thus the appropriate measure of damages where a patentee exploited a patent by granting licences was the “going rate” for such a licence at the time that infringement commenced” and that this “requires the judge assessing damages to take into account any licences actually granted and the rates of royalty fixed by them, to estimate their relevance and comparability, to apply them so far as he can to the bargain hypothetically to be made between the patentee and the infringer, and to the extent to which they do not provide a figure on which the damage can be measured, to consider any other evidence, according to its relevance and weight, upon which he can fix a rate of royalty which would have been agreed”.

Joshua :I do not believe Getty have ever won a case in court. You could therefore decide to offer them a sum commensurate with what you would have paid as a licene fee commensurate with their pricing structure if they can substantiate authorship or ignore them and wait for them to take you to court which they probably won’t.

Joshua :Is thre anything further I can assist with?

Customer:We removed the images from our web site immediately. In fact we shut the web site down..

Customer:I asked for them to forward copyright registration details but they have replied to say this is not a registerable right. They said the images were water marked

Customer:Ihave 21 days to reply – what should I do next in terms of a reply

Joshua :Fine in that case you can dispense with offering to remove them from your website as there is no need. The remainder holds however.

Joshua :I would suggest that you reply asking them for evidence that they are the rights holder to that image. That they are water marked does not prove that they are the rights holder. They need to show reasonable evidence they are the rights holder to make a claim. Also ask them for a copy of their pricing structure to confirm what the licence fee would have been for the image – it will be small.

Joshua :Advise them if they can show that they are the rights holders you will be prepared to pay them a fee commensurate with their licence fee. They will reject this. Revert to to their rejection referring them to your previous correspondence and stating that you will not be able to take the matter forward any further until you receive the above evidence and information.

Joshua :This is a purely speculative exercise on Getty’s part on the basis that one person in every say 100 letters they send out will pay so it is a worthwhile exercise. They know the case law is against them and they probably won’t issue proceedings for this reason. I am not aware that they have done to date at least not that has led to a judgement in their favour.

Joshua :Is there anything further I can assist with?

Customer:Can you forward a copy of this text to my email address [email protected] and send an invoice ? Thanks Joshua

Joshua :Unfortunately I can’t as I have no access to your account nd the system protects your email address as you can see. But I can ask customer services to help you with this.

Joshua :If you could kindly click ACCEPT this will save the thread and I can refer the same to CS to assist you with this.

Joshua :Kind regads

Customer:thanks again Joshua

Joshua, Lawyer

Category: UK Law

Satisfied Customers: 24527

Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice

Well I hope that was as interesting for you  as I found it to be. There really is a huge industry writing these demand letters and when you consider that a large percentage of recipients of such letters just blindly pay the sums requested then you can perhaps better understand why this practice persists. Let me know your thoughts in the comment area below.