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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 44139
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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We run a web development outsource company. One of our client's

Customer Question

We run a web development outsource company. One of our client's whom we did a project for 4 years ago contacted us recently saying that Getty images have engaged Dun and Bradstreet which sent a letter of demand to him for $900 for misuse of one of the images on our client's website. The image has been removed from the website straight away after receiving the notice, however D&B are still claiming that the amount has to be paid. Neither us or our client knew about the image's copyright issue.
We no longer work with this contractor and are unable to track the source of images. Regardless of this, D&B is advising our client to pay the amount and states that despite of using third party for the web design it is their responsibility to have the right to use the images. When my client requested details of the image ownership, D&B said that they do not require to provide this to them.
In my further research that the image originally belongs to DK Images (UK) which has been acquired by Getty Images.
I've read many forums and most people just recommend ignoring the letters. My client is highly concerned for this. What would be the best way to go about this for us as and our client?
Submitted: 2 years ago.
Category: Australia Law
Expert:  Leon replied 2 years ago.
Good Morning
My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question.
The question for you is whether you were the party that use the image for your clients website. If you were responsible for the website and breached copyright the client can hold you responsible.
Did you pay for the image or did you download it from the web and users without the consent of the owner?
Customer: replied 2 years ago.
Hi Leon,
Thank you for your reply.
We are a company that oursources the web development work. It is within our budget for our contractors to acquire the rights for images for our websites (either from paid image stock directories or public portals with commercially free rights eg. http://pixabay.com/). Having said that we do not actively monitor every image used on the website.When we asked our contractor for the receipt, they have showed us the receipt from DK Images, however it was dated after the website was developed. Our contractor states that the website that they acquired the image from was public and was acquired by Getty Images. I have no way to verify this information.
Expert:  Leon replied 2 years ago.
Good Morning,
You need to speak to the party that created the website and see where they obtained the image from.
Because you are the party that had the contract with the customer that is now being chased, the customer can hold you personally liable.
You need to look at the agreement you have with the contractor and if that agreement is clear that images can only be obtained from certain directories, if the contractor did not comply with that they are in breach and you can hold them liable.
If the contractor can provide evidence of what they are saying relating to the website being public, and it was public at the time before it was acquired by Gettys images, then there is nothing to worry about and you have a defence.
At the contract needs to provide this evidence.
It should have a receipt from them where he obtained the image for no cost at the time that he created the website.
Otherwise someone will have to pay for the breach of copyright.
I hope this makes sense?
Customer: replied 2 years ago.
The problem is that the contractor was an overseas one that we no longer deal with.I guess my original question was based on what I found on your website earlier - http://my.justanswer.com/question/guest/ab0a0dd760e344609c9616173116cb70My client is inclined towards not paying the invoice based on this - s115 (3) of the Copyright Act 1968 ( http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s115.html ) "Where, in an action for infringement of copyright, it is established that an infringement was committed but it is also established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright, the plaintiff is not entitled under this section to any damages against the defendant in respect of the infringement…"What are the chances of D&B taking my client to court?
Expert:  Leon replied 2 years ago.
Good Morning
I completely understand he may be overseas.
It all depends on how determined they are.
The money they are asking for would not make ti worth their while and they have to show damages have been suffered.
If they do take this to court, your client will have to incur costs to defend it under that section and again that would be more than what is being asked. Also any solicitor acting for them would join you as the party liable as a backup just in case their client was found liable to pay anything.
So just be aware the client may be the one sued but they have a right to join you.
They can keep quiet about to or be more aggressive and simply deny liability and advise that the photo is taken down and ask for the other side to show damages suffered.
I have seen the link you mention and the information is similar to what I have provided.
D & B may not do anything and the issue is dead but if they do something your client will have to defend it and you may be joined.
I hope this is clearer?
Customer: replied 2 years ago.
Thank you that makes it clearer.Is there anything I can do to protect myself from this in the future? Perhaps a signed contract for contractors used? Or maybe a contract that the client would sign understanding the content ownership?The websites that we provide are content management systems, which means that the client can add or remove any content at any time.What concerns me the most is that the images can get acquired over time by companies like Getty Images and then the same process would be followed. At the moment most public image directories allow images to be downloaded without registering. This means that the is no history (or time stamp) against the image being used. How can we protect ourselves against this?
Expert:  Leon replied 2 years ago.
Good Morning,
In any agreement you have with contractors you should make it clear that any material that they use from the Internet must not be copyrighted and they must provide together with their invoice a copy of the purchase of the image.
You should also ask for a copy of the final website with a list of images to protect yourself.
Also in the contracts with clients you should also have a clause that absolves you on any liability for any images or items that are added after you deliver the website.
I hope this makes sense and is of assistance. If there is nothing furtherthank you for using my services.
If I have missed anything, or you have any further questions please let me know
If there is anything else in the future please do not hesitate to ask.
Please do not forget to leave positive feedback.
Regards
Leon
Customer: replied 2 years ago.
Thank you Leon,You have been very helpful
Expert:  Leon replied 2 years ago.
Good Morning
All the best.
You are very welcome and thank you for using my services.
If I have missed anything, or you have any further questions please let me know
If there is anything else in the future please do not hesitate to ask.
Please do not forget to leave positive feedback.
Regards
Leon