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Copyright infringement question re online image?
A friend of mine in Southern California has a small business (hypnotherapy) and, some time ago, asked a web designer to design a website for him. He did so. A year later, my friend got a letter from Getty Images saying, in a nutshell, that he owes them $1000 because he has a copyrighted image on his website. There was no prior cease-and-desist letter, though they apparently knew he started using the picture a year ago. He called the web designer, who said that he grabbed the image off a free-image website via a Google search (he can no longer locate that particular website), and that the image has no copyright imprint on it. He’s not sure what to do and has until Dec. 1 to pay, oer Getty Images’ demand letter. Anyone know what he should do? Your advice would be greatly appreciated.
Advice: Get an attorney.
This really depends upon any contract he had with the website developer. There could be an argument that, in absence of a “work for hire” agreement, that the webdesigner owns the copyright on the website, and your friend’s business shouldn’t be sued. Certainly, there’s an argument that the web designer has to indemnify your friend (i.e. pay for any damages) for his own intentional actions — like copyright infringement.
(P.S. an image does not necessarily have to have a copyright imprint on it to be copyrighted. This may raise the issue of “innocent” infringement, which may lower statutory damages, but probably will not change the analysis much in this instance, where there is a definite market for the images.)
So, have your friend get a lawyer; and if he cannot get a lawyer by December 1, have him write back and say that he is in the process of getting an attorney who will get back to him by _____. Although attorneys often send demand letters with fast deadlines, they usually (read: USUALLY) do not take further legal action right away if they receive some response (because it’s always cheaper to settle these issues than it is to file suit and litigate).
If your friend cannot afford an attorney, just make sure he keeps in contact with the other side. These sorts of disputes are rarely settled for the first demand. (Your friend can consider a counteroffer based on the use of the image, or agree to pay a much smaller license fee and remove the image, for example.) Your friend also needs to forward this to the web designer to put him on notice that the web designer may be on the hook to indemnify for these damages.
Get an attorney.
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