Beware Of Unauthorised Copyright Infringement

Getty Images, the photographic agency, has recently settled a copyright infringement dispute concerning the unauthorised use of one of its images.

Getty claimed that JA Coles, a UK removals firm, used one of Getty's images ('Mother with daughter (6-8) looking at each other and smiling') on its website without paying for it. JA Coles removed the image from its website immediately after receiving notification from Getty of the unauthorised use. However, Getty continued to demand a royalty payment for the use of the image up to the date it was removed from the website, together with a further amount to compensate for the costs it had incurred in enforcing its rights. JA Coles refused to make the payments.

Getty issued a claim in the High Court for copyright infringement but the case settled out of court with Getty receiving nearly £2,000 in damages and interest plus its legal costs. In contrast, a five year licence to use the image would probably have cost much less.

Getty apparently did not recover additional damages for its claim that such infringement undermines its ability to be paid in full for the use of its images. Nor did Getty recover compensation to pay for the specialist image tracking technology it uses to detect unauthorised use of its images on the internet. Getty originally claimed damages for both these types of loss.

'Innocent infringement'

Due to the ease of accessing images on the internet, it is easy to inadvertently use an image without the correct authorisation. Also, it is a common (but incorrect) belief that images available on the internet can be used without payment.

Infringement of copyright in artistic works (including photographs) is covered by section 17 of the Copyright Designs and Patents Act 1988. The Act entitles a copyright owner to a remedy for infringement. The fact that a business does not know that it is infringing copyright is no defence. The 'innocent infringement' protection contained in section 97 of the Act only protects a copyright infringer who had a genuine belief that copyright did not exist in the work (eg because the copyright protection period had expired). This defence will therefore apply in limited circumstances. Merely removing the image after the infringement does not erase...