Hi Suzanne
That's true in the first instance, however, as I understand, unless the rights holder is a copyright collecting society, they can charge what they want...This would be for the use of the images without permission and they would also be entitled to demand that the images are taken down. (NB: If
images are being used in print form, then the rights holder can demand that books, products etc are destroyed). I guess that the rights holder might also use the argument that the use of the work is prejudicial to their interests and potentially charge damages on top (particularly if no immediate action is taken or fees are not paid - see my point below).
There are subsequently, a number of issues which flow from this, which make the issue more complex:
a) The organisation using the infringing images would need to prove that what they are being charged is what people would normally pay (the two can vary considerably)
b) It is not uncommon for anyone else who is using the images supplied by the organisation, such as funding bodies, to also be caught up in this and be charged by the rights holder
c) If the organisation in question refuses to pay because it may be too expensive etc, does nothing etc, the rights holders could seek other recourse of action, such as injunctions etc plus bump up the fees and damages
d) There is, I believe a long way to go before court action, as referenced by Frankie, but the costs of additional fees which may have been unaccounted for in budgets, damages to relationship with rights holders (who might also be lenders of works, collecting societies etc etc) and funding bodies (which might also result in a breach of contract) is quite hard to assess
e) Issues of damage to repute and trust and also worth mentioning
I am not of a habit of scare-mongering, but whilst being pragmatic, we also need to be realistic and bear in mind that it's the "hidden" ramifications as above which often got forgotten when assessing risk and risks will vary according to the type of content that we are using.
Best
Naomi
-----Original Message-----
From: Museums Computer Group [mailto:[log in to unmask]] On Behalf Of "S
Keene"
Sent: 10 September 2008 23:41
To: [log in to unmask]
Subject: Re: Image Copyright
I have been told, by a very good authority, that the most a copyright owner can claim in compensation is what the charge for the use of the image would have been had permission been granted. This makes a risk assessment a much more realistic and feasible exercise. I know at least one large museum project simply
set aside a contingency sum for settling copyright claims if they arose. Less panic and more information may be helpful. Naomi do you know if this information is correct?
best wishes
suzanne
on 10/9/08 11:28 PM, Museums Computer Group <[log in to unmask]> wrote:
> > On Wed, Sep 10, 2008 at 9:00 PM, Jon Pratty
>
<[log in to unmask]>wrote:
> >
>
>> >>
>> >> I know from experience that it's no use using worthy-sounding phrases to
>> >> protect against copyright litigants. They will find an angle to get you
>>
if
>> >> they can...
>> >>
>>
> >
> > Legally speaking, you're probably entirely right. I'm not even sure that
> > there currently is even any provision for 'orphan works' within English &
> > Welsh law (though I think they're working on it, see the Gowers review:
> >
> >
>
http://www.hm-treasury.gov.uk/independent_reviews/gowers_review_intellectual
_pro
> > perty/gowersreview_index.cfm
> > ).
> >
> > The law is, I imagine, about far more than just the actual written laws,
> > otherwise lawyers, courtroom theatrics and out-of-court settlements would
> > never take place. If you're going to make a risk assessment, I think you
> > should consider...
> >
> > a) the likelihood of a copyright owner finding out about their work,
> > spotting that you've used it, and being then being unhappy with your
> > publishing it. Especially if you've already made an effort to establish
>
the
> > owner.
> >
> > b) the likelihood that, if all the above were true and they did contact
>
you,
> > they wouldn't be satisfied with a speedy take-down, small payment or
> > attribution credit. I'd guess that this would satisfy most people in most
> > circumstances.
> >
> > c) finally the likelihood that, if a) + b) were true, they would actually
>
go
> > ahead and take you to court, despite all the bad publicity that would
>
ensue
> > from taking a noble public institution with public education as its aim to
> > court. The media would surely be on your side!
> >
> > All this is, of course, a RISK assessment, and some institutions might not
> > be comfortable with taking any risk at all, even if the risk is minuscule
> > and the rewards are great. Also, the risks might vary from pretty unlikely
> > to very very very unlikely depending on your circumstance - for instance I
> > imagine that selling prints of an artwork that you think it out of
>
copyright
> > is probably more risky than taking an old family photo from 1962 whose
> > family you can't trace and publishing a copy online in an educational
> > microsite.
> >
> > My overall point is to encourage people to be pragmatic about these issues
> > and to make judgements, as this is what big businesses, who are much more
> > likely to be sued, do. I know from friends in the radio industry, for
> > instance, that they break strict copyright law all the time, by playing
> > clips of things they haven't been able to get permission for, or making
> > shows available for listen again online without clearing 100% of all the
> > necessary rights (which is nigh on impossible).
> >
> > I'm not saying you should ignore copyright law completely, but if you're
> > working in good faith, for a good purpose, then I don't think you need to
>
be
> > too paranoid about the minutiae of what's technically allowable!
> >
> > Cheers,
> >
> > Frankie
> >
> > P.S all the usual disclaimers about not being a lawyer, this not being
>
legal
> > advise, or constituting an attorney-client relationship, blah blah blah,
> > apply.
> >
> > **************************************************
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> > website at http://www.museumscomputergroup.org.uk
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> >
> >
> >
>
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M: 0779 962 7002
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