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Are you safe from Getty Images? (Part two)

18/09/2012

The big picture

Last week we looked at the perils of using unlicensed pictures from digital media providers, particularly Getty Images.

Although we talked about how to avoid getting into trouble in the first place (always the best option), we all know what happens to best laid plans ...

So this week we’re looking at an actual claim against one of our customers, the circumstances behind it and how it was resolved.

There’s nothing like a real-life tale of woe to help focus the mind.

What went wrong

Our insured is a design agency specialising in branding and corporate identity. The contract in question, and what got Getty’s attention, was for the design and build of a yacht harbour’s new website.

Like most design agencies, they recommend Getty stock images to their clients on a regular basis. They’re no stranger to Getty’s terms and are well aware of their licensing obligations when using their pictures.

On this occasion – and as usual – they’d used watermarked, low-resolution images as placeholders in a private, non-live version of the website. This was so their client could see what their site would look like prior to giving the thumbs-up.

Following sign off, and depending on their client’s feedback, our insured’s intention was to either buy the images or replace them with some from another source.

The only problem would be if those images somehow found their way into the public domain first.

But they were on a non-public website designed for proofing purposes only. That could never happen. Could it?

Indeed it could.

To cut a long story short, an unnoticed programming error meant that data from the staging site pulled through on to another, live website held on the same server. The live website’s domain moved to the staging site – redirecting every user there and effectively making its content live.

That meant the images were up for everyone to see. It was only a matter of time before Getty’s tracking software found them and identified the images as live and unlicensed.

And, sure enough, that’s exactly what happened. A few weeks after the programming error, our insured got a letter from Getty stating they’d infringed their (Getty’s) copyright by using unlicensed images, and they owed them £1,936.

How it was fixed

Although it might seem odd to say so, our insured was lucky. That’s to say they were lucky they were insured. Professional indemnity insurance covers claims of copyright infringement, even if the claim isn’t from a client.

Without a policy, they’d have to stump up for the legal advice and the cost of the licensing themselves. Granted, the amount in question wasn’t enormous this time; but claims of a few thousand pounds or more are common.

In the end, all they needed to do was get in touch with us and run through what’d happened. When we had the details we needed, we spoke to their insurer (Hiscox) and discussed the best course of action.

Hiscox agreed that the insured was liable, that the amount should be settled and that their policy would respond. Copyright claims like these are often open and shut cases: there’s a clear breach of the licensing agreement, regardless of whether it’s intentional or not. Unfortunately, designers often don’t have a leg to stand on.

Good insurers know this and look to settle quickly. The claim won’t go away and it’s best to bite the bullet before the costs escalate. It’s unlikely to go as far as court but that doesn’t mean it shouldn’t be taken seriously.

Besides which, claims like these take months to resolve and divert resources away from core business, holding projects up. It’s easy to make a bad situation worse by missing deadlines with other clients, for example. That, potentially, could lead to more negligence claims.

As it turned out, their insurance eventually picked up the tab for everything (minus the policy excess) and that was the end of it. Their client remained oblivious and the new website launched without a hitch.

Landmine: side-stepped.

But not everyone’s so lucky. Plenty of those on the receiving end of a letter from Getty have to fight their own corner – and that’s if they know what to do in the first place.

Next time we’ll look at what you should and shouldn’t do if you find such a letter on your doormat.

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