9 replies to this topic

[rolf]

I'm making a micro site for a newly signed underground heavy metal band. They are not expecting world fame, but will probably sell a few thousand copies of their album.

One of the images they want to use is from book on witchcraft, which was published by a small indy publisher in the 1970s and is now AFAIK out of print. The chances of the publisher caring if they ever see it are minimal, but there is that chance.

I've informed them via email that I am concerned about copyright, but I suspect they will want to just use it and deal with the consequences later - this is often the way with bands!

My concern is that I may have some comeback because I am being paid to put the image on their website - what do you think?

[Jill]

Would they maybe allow some form of attribution with the image?

[1dmf]

In my experience in the first instance you are usually sent a cease and desist request.

However, if they feel you have breached copyright to their detriment or they feel the band has enough money to make it worth suing them, then they might.

If you have in writing that you told them they needed to get copyright sanction, they decide not to and tell you to put the image up and you have that in writing, it will be their money not yours if the lawyers come knocking.

But as Jill say's it might be worth contacting the copyright owner and asking, you never know!

[rolf]

Would they maybe allow some form of attribution with the image?

Maybe, might be an option, depending on their reaction to the email I've sent them on the subject.

In my experience in the first instance you are usually sent a cease and desist request.

However, if they feel you have breached copyright to their detriment or they feel the band has enough money to make it worth suing them, then they might.

I'm sure you are right that it would probably go no further than a C&D, but the latter point is my concern really - they might not feel the band has enough money, but might decide that as I was paid to put the image up I'm worth chasing.

If you have in writing that you told them they needed to get copyright sanction, they decide not to and tell you to put the image up

That might be the road to go down - I guess on the small chance that there is any comeback, then I should have an argument for some indemnity by working under their instruction, as such, over such a small amount of money, I'm sure I wouldn't be worth chasing.

Thank you both for the input.

[Ron Carnell]

If you have in writing that you told them they needed to get copyright sanction, they decide not to and tell you to put the image up and you have that in writing, it will be their money not yours if the lawyers come knocking.

And make sure, before you rob a bank at their request, that you have it in writing that you advised them it was a bad idea. </sardonic-observation>

Seriously, there is no "comeback," "argument," or any other legal justification for using someone else's property without their permission. Attribution doesn't limit liability, any more than telling everyone you meet who owns the stolen car you're driving makes it less stolen. Property is property, whether it is real or intellectual. When you're thinking about using the latter without permission, mentally substitute the former (for example, a car) and ask yourself again whether you think it might be okay. Chances are it won't be.

As for them coming after you personally, you actually have two worries: Criminal and civil. The police might or might not come after you. Lawyers, however, almost certainly will. It costs them absolutely nothing to attach additional names to a civil suit, so they typically include EVERYONE they can. They'll probably sue the web host, too.

[Michael Martinez]

If they are sued, they may very well be sued for far more than the amount of revenue the site generates. The US court system takes copyright very seriously. If the publisher was legitimate, they probably filed a copyright registration -- which means they can go after punitive damages. Assuming the band sells 2,000 copies of the album from that site, someone might argue to the court that the copyright owner is entitled to 2,000 times $250,000.

That is hypothetical but any IPR attorney in my experience has made it clear that these kinds of judgements can be lifetime revenue-crushing. It's really not worth the risk. They should try to work out a deal for legal use of an appropriate image.

[piskie]

IMO, now you have openly acknowledged that you are aware of the Copyright issue, you cannot rely on the defence that you published in good faith. So if it went past C&D, you are in the dock alongside the Band.

[1dmf]

Very true, but then ignorance is no excuse of the law.

so knowing or not, in that instance makes no odds. But if you have in writing that you asked them if they had the right to use it and they told you yes.

That most certainly is arguable in a court of law, the point is who's responsibility is it to ensure they have aquired all the relevant licencing?

If you have been employed to design a website, have asked if the images they supplied are legal and they say yes, i don't think it would be expected for you to asscertain if they are lying to you?

If that was the case, no-one would get anything done via freelance or sub-contracting.

It's no difference than the situation I was put in at work, I was asked to use unlicensed software by the director of the company, i refused, they tried to hold a diciplinary against me for insubordanation. I pointed out it was my right to refuse to take part in their criminal activities. I won!

However, if I was not aware that the software was unlicensed and went ahead an used it, and then FAST came knocking, I would not get in trouble, the ultimate resonsibility lies with the Director of the company and his requests upon his staff.

It would not be every member of staff's responsibility to check whether the PC the company has supplied for them to do their job is fully licensed and legal to use!

[Jill]

If you have been employed to design a website, have asked if the images they supplied are legal and they say yes, i don't think it would be expected for you to asscertain if they are lying to you?

Very true. Most website design contracts I've seen state that the client agrees that everything they're supplying for the website is owned by them.

So I would make sure you have that in your contract or have them sign one asap if you haven't already. It is standard language now that I think about it.

[piskie]

Yes Jill, that goes without saying.
I always make it clear that any client supplied content is conditional on them owning or having release on copyright. I do this both during preliminary discussions and within the written agreement for any work undertaken.