Although it is not new, we have recently had an increase in clients being targeted by copyright scams for images on their websites in which they have the rights to use.
What is it?
The background on this begins maybe 15-20 years ago when the technology became readily available to trawl through websites and perform image comparisons at scale. A slew of companies sprung up and teamed up with image rights holders such as Getty and Flickr etc. They offered these companies a share of collected revenues in exchange for access to their image databases. So began the avalanche of "claims" against people such as yourself.
Although not technically a "scam", what these companies rely on is fear. Their aim is to obtain money from someone who innocently used an image on their website, not realising there may be copyright associated with it. These companies then claim they are operating on behalf of the rights holder (which in many cases is nothing more than the photographer ticking an "act on my behalf" box on a website such as Flickr) and have been instructed to seek outstanding licence payments from the website owner.
Now comes the semi-legal bit: To the best of our knowledge you cannot be forced to pay a fee that you were not aware existed in the first place. You can, however, be sued for damages, BUT only within the provisions of the law. Image copyright breaches such as this would fall under the Copyright, Designs and Patents Act 1988 which states in section 97:
97 - Provisions as to damages in infringement action.
(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.
(2) The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to—
(a) the flagrancy of the infringement, and
(b) any benefit accruing to the defendant by reason of the infringement, award such additional damages as the justice of the case may require.
In other words, if you didn't know that the image was copyright no damages can be claimed, unless it is flagrant AND you have materially benefitted by using the image e.g. printing a copyright photo onto canvasses and then selling them on Amazon.
These companies rely on fear and ignorance of the law in order to extract payments from unwitting web site owners. In every case we have come across in the last 20 years (and there have been many) nothing has ever come to court and no damages have been paid.
What should I do if I recieve one of these emails?
- Well, firstly DO NOT PAY ANYTHING! It seems the entire business model for this is based around frightened, uninformed people just PAYING THE BILL!
- Secondly, remove the offending images from your website as soon as you are notified. If you can’t do this, then notify us and we will do it for you.
- Because of the nature of the demand you will most likely want to take legal advice, which is a wise idea because we, in no way, would pretend to be able to offer legally accurate information to you.
- We would also recommend that you do your own research to see just how many people are also facing the same threats. This will both reassure you and demonstrate just how widespread the problem is.
How can I avoid this?
Always use images you have permission to use. Either images that you have taken or own or free stock images. If you are using these stock images we would recommend updating the credits section of your website with the details of where this image has come from. See our article on adding credits here: https://help.scrumpy.co.uk/article/199-credits
We are not qualified to offer you any kind of legal advice. We would suggest that if you are genuinely still concerned about this issue then you should consult a legal professional. Having said that, unless you deal with a specialist it is unlikely that your average high street solicitor will have come across this type of situation before.
Unfortunately the law puts the onus of responsibility on the website owner rather than the developers so we understand if ultimately you would prefer to reassure yourself by taking some actual legal advise.
If you have any concerns or would like to discuss any of the above in more detail then please get in touch.