by Wendy M Grossman | posted on 25 August 2006
The story as it's been explained to me is one of those archetypal sad Internet tales. About five years ago, the owner of a small, Taunton-based cab company decided to create a Web site to advertise the business. He hired a Web developer, who created and set up the site, decorating it with a few pictures.
Time passed. About two years ago, the Web developer went bust. Another local company took over hosting the site.
About a month ago, the site owner got a letter from the legal firm Baker & McKenzie informing him that they represented the photography database Corbis, that one of the photographs infringed Corbis's copyright, and that would be £1,400, please.
There can't be very many small businessmen who get a letter like that who don't panic at least a bit. Two solicitors gave conflicting advice. One said, no case to answer. The other said, pay something because if it goes to court a judge would look on that as evidence of good faith. As of this writing, it's not clear how things will wind up.
But there are some interesting points to make.
First of all, assuming that he is telling the truth and never asked his Web developer where the pictures had been sourced or whether the rights had been cleared, ultimately the owner of a Web site is responsible for whatever appears on it. If you run a Web site - any Web site - you are operating at some risk if you use material that doesn't belong to you. Even if you think that all information should be free and share the fairly common attitude that anything posted on the Web is public domain and free for the copying, the law does not agree with you.
And while you may feel that using someone's graphic and linking to it is good publicity for them, that's not, legally, your choice to make; it's theirs. Individuals may get away with casual copyright infringement; but if you are running a business you have to be aware of the risk.
There is a legal precedent establishing the Web developer's responsibility in such cases: Antiquesportfolio.com vs Rodney Fitch & Company. In this case, the owner of an online start-up discovered that the Web developer had lifted the images used for navigation bars, icons, and other decorative elements from a printed encyclopaedia. No action had been brought against the site owner, but that company felt, I think rightly, that the risk of liability was too great and that they would have to pay to redo the Web site without that material. The court sided with Antiquesportfolio.com. Practical lesson: Web developers and site owners both need to protect themselves.
Nonetheless, Corbis's demand for £1,400 is, in my opinion, disproportionate. The cab company almost certainly did not get more business because the photograph is in the Corbis database (if you want to look it up, it's image number 72584) or because it was taken by the photographer Steve Chenn, admirably composed though his work seems to be. It's a minor decoration intended to dress up an otherwise ordinary Web page.
Ian Walden, a reader at London's Queen Mary University, says that in a legal proceeding the court generally tries to do two things: stop whatever the infringement is, and compensate the claimant for the loss that's been caused. "When a court has to examine past loss," he says - as in this case - "they tend to look at what is a reasonable fee. So they would look at what is the market rate for that sort of image. So there's reasonableness. The claimant doesn't get whatever they ask for."
After talking to him, I went to the Corbis site, created an account, and found the photograph. For small-sized use on a "corporate or promotional" Web site, aimed at a UK audience, in English, as a static element, in the transport or travel industry, for up to five years beginning August 23, 2006, Corbis would charge: $875.Of course, no small company is going to pay even that. The Web developer Mac Jordan keeps a publicly available set of bookmarks to sources of stock photography, all either very cheap or free, all royalty-free. For such a minor use, there is no reason to pick an expensive image over a cheap or free one from such a list, so it's puzzling why this web developer seems to have picked an expensive one.
In addition, because the Web developer is gone, we don't know how or where the photograph was sourced or whether the rights were in fact cleared. We only know that Corbis claims the use is an infringement.
I would be inclined to ask them to prove that claim.
But there is another point, raised recently in a posting to Dave Farber's Interesting People list, in which Brad Templeton proposed the term "spamigation" for lawsuits automated by computers.
Baker & McKenzie is a big, high-priced law firm. Do we think their partners are sitting around scouring the Net for images they recognise from the Corbis database? Or do we think someone has software that goes and spiders for this stuff, and when it finds something a computer spits out a letter?
Probably somewhere along the line the lowest-priced intern in the place goes and looks up the site's Whois entry. You don't need a lot of people to pay up at first contact to make that a profitable business.
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