Who is at fault if my web designer used a photo without permission and now I've been sent a letter demanding $6,000 for the use? 8 Answers as of April 02, 2013

Shouldn't this be the designer's problem?

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Mark S. Hubert PC
Mark S. Hubert PC | Mark Hubert
I don't think the issue is who is at fault. The issue is "who is using someone else's copyrighted picture?" Looks like you pal.
Answer Applies to: Oregon
Replied: 4/2/2013
Barton Barton & Plotkin
Barton Barton & Plotkin | Maurice Ross
Both of you are at fault. Copyright infringement is a strict liability offense-if you used a photograph on your web-site without permission, you are liable even if it was your web-designer who selected and posted photograph. Your web designer is also liable for inducing infringement. It is possible that you might have a cross-claim against your web-designer but only if you had a written agreement with the web-designer pursuant to which the web-designer agreed to indemnify you in the event he selected a photograph that infringed someone's IP rights. Even if you have a valid claim against the web-designer, you are liable to the copyright owner. Obviously, you need to retain Ip counsel to help settle this for you. By the way-you are lucky that the demand is only $6,000. Copyright law allows for claims of statutory damages of up to $150,000 for each photograph in situations like this. This settlement demand is not unreasonable. You absolutely must retain legal counsel here-you face much greater risk here than you may believe. If you do not settle this and it goes to court, you could be liable for a significant damage award plus you will be required to pay the attorneys fees for the copyright owner.
Answer Applies to: New York
Replied: 4/2/2013
Banner & Witcoff, Ltd. | Ernie Linek
Your website your problem. You may have a cause of action against the web designer - but that is after you settle with the photo owner.
Answer Applies to: Massachusetts
Replied: 4/1/2013
Law Office of Kirk Buhler
Law Office of Kirk Buhler | Kirk A Buhler
When someone feels harmed they will try to sue everyone that they feel is responsible. The designer has some responsibility but the designer would claim that you authorized the web site. You should notify the people that sent you the demand letter that you were not aware that the photo was not in public domain, and tell them that the picture will be taken down immediately. It should be the designer's problem, but they are going after you. For them to collect any money they would need to show that they were harmed by your posting. This would be difficult to prove. In addition, they would need to show that the picture was copy written and there should be some indicator on the image.
Answer Applies to: California
Replied: 4/1/2013
Webb IP Law Group
Webb IP Law Group | Jason P Webb
If an an image has been used without the permission of it's copyright holder on a website, both the designer and the owner of the website carry liability and that liability is independent of each other. Sometimes a designer will take care fo the problem in order to salvage the relationship with their client, but that is not usually the case, from our experience.
Answer Applies to: Utah
Replied: 4/1/2013
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    If the web designer was working for you (an employee), you are responsible for the violation. If the designer was an independent contractor, either the designer or you both may be liable (depending on what the contract between you says). The degree of liability may also depend on how the photo was used on the site and how much of the original work the photo was part of ended up on your site. Check first to see if the photo is still protected by copyright and make sure that the person claiming ownership actually does own it or have a copyright license to use it.
    Answer Applies to: Nebraska
    Replied: 4/1/2013
    Ochoa and Associates
    Ochoa and Associates | Susan Ochoa Spiering
    This is a loaded question. Who is at fault depends on all the facts.....for example, did you tell the designer to put up the photo? Or direct her/him as to what to do, or what you wanted? did you know the photo was used w/out permission and let it stay on your website? have you benefited commercially from the photo being on your site? These are but a few questions that need investigating. You are best to speak to an attorney on this matter. And for a $6K claim, it is best for you to do this sooner rather than later. Good luck.
    Answer Applies to: Texas
    Replied: 4/1/2013
    Law Office of Mathew R. P. Perrone, Jr. | Mathew Roy Patrick Perrone, Jr.
    I do not litigate. The owner of the copyright will collect from anyone possible. You may be able negotiate. You should have a cause of action against the web designer for your damages. Collection is another problem.
    Answer Applies to: Illinois
    Replied: 4/1/2013
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