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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9684
Experience:  I have been practising for 30 years.
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I need a solicitor to help me draw up a simple copyright

Resolved Question:

I need a solicitor to help me draw up a simple copyright indemnity agreement asap. I built a website for a client 3 months ago and told him that he didn't have copyright for the product photos in use. It seems that someone has complained about copyright infringement and I've heard via someone else that the website owner is saying I am responsible for the infringement because I created the website. I tried to arrange a photographer for next week to have his product photos taken but he said he didn't want to spend the money doing that. I have now taken his site offline last night and am worried about what I should do.
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

Will the person who asked you to do the site, sign an indemnity?

Has anyone been in contact with you about this or just complained to the site?

Customer: replied 1 year ago.
my client has agreed to sign an copyright indemnity agreement. Nobody has been directly in touch with me, but I have heard via someone else that legal proceedings have been initiated
Expert:  F E Smith replied 1 year ago.

Thank you.

I can assist you with this agreement which I can submit for you as a premium services proposal but before I do that and before you have this agreement just let me clarify the legal effect.

It would not stop you being sued and it would not stop you getting a judgement against you in the event that any defence you put forward fails. You have a reasonable defence if the customer supplied the images because it would be unreasonable for you to check whether he had the intellectual property in all those images although if you knew that he didn’t have the intellectual property the right to use them, you could be culpable along with him.

Just because you have an indemnity from him does not protect you in court. The indemnity is immaterial with regard to the court proceedings. It is purely an agreement between you and him whereby he agrees to take on the chin anything which happens to you such as, if there is a financial charge imposed upon you, he would take care of it.

From a claimant and court point of view, the existence of the indemnity is not relevant. It is just between the two of you.

Is that the effect you are looking for are you looking for some kind of exoneration? If the latter, the only way of being exonerated is to defend this in court. The indemnity would simply allow you to get the court costs back from the other guy.

If he is carrying on with this website with these images regardless, then he is extremely foolish.

Can I clarify anything for you?

Please don’t forget to rate the service positive. It is an important part of the process by which experts get paid.

Best wishes.

FES.

Customer: replied 1 year ago.
Thank you for the explanation. What if I delete all the product photos from the site and give him a part refund for his website design? If he continues to use photos which he doesn't have copyright license to use, then surely the responsibility is then his alone (because I took steps to avoid copyright infringement issues)?
Expert:  F E Smith replied 1 year ago.

It depends whether he would be happy with that. Ultimately, you built a website and if you supply the images, then it’s not fit for purpose or satisfactory quality and is actually worthless.

If he will accept the website with no images and the facility to put his own images on and a partial refund, I think that’s a good result.

It’s unlikely that there would be any court action if the images have already been removed although the threat could be there, it’s unlikely to proceed to court.

If he then populates the “empty website” which you provided him with an populates it with other people’s photographs, then it’s nothing to do with you.

Customer: replied 1 year ago.
Ok I think I'm going to opt for deleting the product images. Is there a way I can prove that I've done this? I guess he could re-add the same/similar photos and say I did it.
Expert:  F E Smith replied 1 year ago.

I think the best way would be to take dated screenshots of the new pages and send him an email telling him exactly what you’ve done along with the new link if the link is different.

If you hear anything from the potential claimant, simply write back and say that these images were deleted on the date they were deleted. Until then, there’s nothing you can do.

F E Smith and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you for your help