Archive for September 2009

Copyright Law Update: Getty Images case – part 2

Thursday September 17th 2009, by Piers Strickland

In our post of yesterday, we reported on a copyright infringement case brought by Getty Images that has provoked debate from those who question whether Getty enforces its copyrights too vigorously, taking advantage of the fact that the legal system in this country (England and Wales) is set up to favour copyright owners.

A further point to be made in this respect is that it is not just big companies such as Getty Images that can benefit from the legal system governing copyright.  Smaller companies and individual photographers can also benefit from the prevailing legal system governing copyright and use the way the system operates to their advantage in copyright disputes.

For further information about how to enforce your copyright interests, please contact us.

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Copyright Law Update – Getty Images successfully recover damages for copyright infringement

Wednesday September 16th 2009, by Piers Strickland

In a case reported on Outlaw, Getty Images has managed to successfully recover damages for copyright infringement from a removals firm who copied a Getty controlled photograph and reproduced it on their website without authorisation. The removal firm in question, JA Coles, subsequently removed the photo, upon receipt of a complaint from Getty, but did not pay damages or indeed respond to Getty’s subsequent correspondence.

Outlaw reports that: “[JA Coles] has agreed to pay £1,953.31 in damages and interest over the use of the picture, plus Getty Images’ legal costs”.

COMMENT:  Getty Images are well know for enforcing their rights pro-actively. Most, if not all, copyright lawyers in this country will have had at least one client contact them with a letter before action from Getty Images complaining about alleged copyright infringement.

It appears that Getty uses technological automated methods to spot infringements, so the chances of instances of copyright infringements of their photographs coming to light is perhaps quite high.

Judging from certain blogs and bulletin boards, many people are shocked that Getty would pursue an alleged infringer for damages after it has removed the image from its website.  However, Getty will no doubt argue that the value of their business and future revenue streams very much depend on protecting their copyrights robustly.

One thing, however, is clear.  If you have copied an image owned or controlled by a company such as Getty (without permission) and reproduced this image in some material form, then this is likely, in many circumstances, to constitute an act of copyright infringement.  Normally, a company such as Getty would be entitled to damages or a notional licence fee (which I understand to be around the £2,000 mark for Getty’s business).  Innocence is no defence to such an act of copyright infringement and simply removing an image after an act of copyright infringement has taken place does not expunge the original act of copyright infringement.

Furthermore, copyright infringement cases, even small ones, do not go onto the small claims track in the Courts.  Instead, such cases are often issued in London’s High Court.  In the High Court, the winning party can often recover their legal fees from the losing party.  Companies such as Getty often retain very expensive lawyers.  Therefore, a company who ignores a warning letter about copyright infringement could be faced with a very expensive legal case on its hands, even if it just emanated from a “minor” infringement.

Lesson: if you happen to receive a copyright infringement warning letter, don’t ignore it, as that it usually a recipe for even more pain.  Seek professional advice.

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Website Law – case confirms what charges suppliers can make under the Distance Selling Regulations

Friday September 11th 2009, by Piers Strickland

The German case of Pia Messner v Firma Stefan Krüger has clarified what charges UK suppliers can and can’t levy on customers who are returning goods.

FACTS: A German internet based business had terms in force on its website which stated, amongst other things, that a purchaser would be liable to pay compensation for any deterioration in the goods through use for their intended purpose. There was a German law which allowed suppliers to charge consumers generally for the use of goods they return. The German court asked the European Court of Justice (the “ECJ”) for a ruling whether this German law as compatible with the European Directive 97/7/EC on distance selling (the “Directive”).

DECISION: The ECJ held that:

  • A provision that allows a seller to claim compensation from the consumer for the value of the use of the consumer goods, was not compatible with Articles 6(1) and 6(2) of the Directive.
  • Articles 6(1) and 6(2) do not prevent a consumer from being required to pay compensation for the use of the goods if he has used the goods in a way which is incompatible with good faith or unjust enrichment.

COMMENT:  This case is instructive for companies selling in the UK,  as it confirms that the only charge a supplier can impose on a consumer cancelling a contract under the Directive is the direct costs of returning the goods to the supplier. Other fees such as administration or restocking fees are not permitted under the Directive.

The Directive is an important constituent of “Website Law” and needs to be carefully considered by those companies involved in “Distance Selling” over the internet.

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Dragons’ Den shows the importance of intellectual property rights

Friday September 4th 2009, by Piers Strickland

The Dragons’ Den television series always raises a smile on the face of intellectual property lawyers, as it emphasises the importance of intellectual property rights in the modern competitive market.

One of the first questions often asked of the inventors by the Dragons is “who owns the rights to this product”.  Frequently, this translates as to meaning who owns the intellectual property rights in a product.  In the most recent episode broadcast of Dragons’ Den, a 21 year-old inventor, Vernon Kerswell, faced what came close to threats of patent infringement from Peter Jones, who is a 25% owner of a competing toy company.

Peter Jones claimed that there was no way this inventor could sell his wheeled helicopter device because his company owned the “worldwide patent” on this invention.  Strictly speaking, there is no such thing as a unitary worldwide patent, so Peter Jones can be quite legitimately accused of over-stating his position right at the outset.  In any event, patent issues are rarely simple enough to make broad sweeping generalisations, without a careful consideration of the issues.

In assessing whether the wheeled helicopter device does amount to an instance of patent infringement, a court would analyse the claims of the patent to see if they cover the new product.  The court would also usually be asked to decide whether the patent in question was valid.

Many granted patents are in fact invalid, hence perhaps Peter Jones’ sensitivity by claiming the patent in question was “watertight”.  Also, the wider the claims of a patent are, the more chance they often have of being judged invalid.  Furthermore, patents are time-limited, generally to around 20 years, so while they offer a monopoly over the invention in question, it is a monopoly right that does not last forever.

In the field of helicopters, which have clearly been around for well over 20 years, one issue would be how much longer such patents will be in force.  On the other hand, novel applications of existing technologies can, on occasion, give rise to the right to a fresh patent.

Conclusion: inventors should not take at face value broad statements from patentees / patent licensees, such as Peter Jones.  The law in this area is complex, so much so that the great Evan Davis clearly is muddled himself referring to this patent infringement issue as a “copyright infringement” matter.

A specialist intellectual property lawyer can often find a new company an effective and safe way through what it called the “patent thicket”.  As is no doubt one of the Dragons’ mantra (so long as they don’t have a competing vested interest), perseverance pays dividends.

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