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Comment by tomelders | Hacker News Reader

What’s actually happened here is that a designer has lifted an image off the web (probably through a google image search) for a design, and that design has made it through to production.

I’m not saying it’s ok. But I’d be willing to wager that no one at Netflix had any ideas where those images came from. The design was most likely from a design agency, and even the top brass at the agency probably had no idea where those images came from. At the root of this there’s a designer who’s probably been asked to rush out a design, they’ve taken a shortcut and they’ve been rumbled.

Again, it’s not OK to steal images, but I seriously doubt Netflix knew that’s what they were doing.

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You're almost certainly correct on your guess.

That said, the top brass at the agency/Netflix/etc should be ensuring processes are in place to require obtaining/verifying licences for the images used.

If some idiot designer grabs images from Google Image Search, and fails to inform anyone, it's still management's fault for not verifying those things.

Accidental copyright violation is a liability in almost any online business.

It's not okay, but it's also not a HUGE crime. This is a civil matter, worst case it'll cost some money as they buy a license after the fact... or pay settlement in court.

It's perfectly reasonable to NOT stifle your organization with cumbersome processes to verify licenses.. Because these things rarely happens, and when they do are often worked out at low cost.

The DMCA says to stop infringement upon notification. It doesn't specify unlimited penalties for accidental infringement. If so YouTube and most of the internet would die at the hands of greedy copyright holders.

In most of these types of jobs you directly bill the client for licence acquisition for the type of usage (after the client approves the artwork/design).

Forget to do that and now you need to pay out for acquiring the licence afterwards - and you'd better hope there was nobody identifiable in it because getting a modelling release afterwards can be even more expensive (after all, both the photographer and the model know they have you over a barrel).

Also don't bother billing the client afterwards, after that kind of screw up you'll be on eggshells with the client. Do it twice and you definitely won't have a client to worry about.

If implementing a lightweight process to vet designs would cost less than the cost of settlements/judgments, then it would make sense to implement some process. Companies that want to stay in business have to put on their Grownup pants and get serious about risk mitigation.

small things like this is a tiny risk.. as is the risk it'll be discovered..

let's be fair, little harm was done here..

Sorry, I missed the accident part. Where in the narrative was the accident?

Yep, junior designer isn’t really that much at fault. Senior Manager who owns the process Should really know better. That’s why they pay them the big bucks.

Don't mean to come across as nit-picky, here. I work for a media company (not Netflix):

Just to keep things going straight — that's usually an art director's role on such a project. Senior management likely wants nothing to do with tasks like ensuring copyrights and IP issues are paid out. The art directors are usually the ones who know better. Senior-level managers may know, but they may also pay other people to know better.

Junior designer isn't at fault, and shouldn't know that you can't just lift random photos off the internet for commercial use? Please. Of course their boss is at fault too, but the person who actually did Bad Thing is - at a minimum - 50.1% responsible.

Of course. The image in question is the 3rd that comes up on Google Image Search for "vhs tape" (and the first good one).

To people who argue that the person at the agency should have used a microstock agency, the problem is, the image you get from a microstock agency (without an account) almost always has a big watermark on it, so it can't be used to make an acceptable mockup.

To get an image from a microstock agency without a watermark you need an account, and the junior designer tasked with doing the mockup probably doesn't have one, and she didn't have time either to go ask for one.

Bad process? Certainly. But big corporations don't necessarily have good process. They have people sitting around in offices, subcontracting everything to consulting companies who in turn try to have the work done by unpaid interns if possible. Okay, that may be a caricature -- but truer than it sounds.

They are big watermarks so they cannot be used without paying. Agencies are supposed to pay for theses photos, and most good ones do so (I'm currently working in a design agency). As they are working for a company like Netflix, I doubt they do not have the money to do so.

What's the appropriate process for situations like this one? Would you just make a note of the copyright holder and have someone contact him if the client likes the mock-up?

Typically, in my experience, you just buy one or more photos and show the client options. You don't nickel and dime this stuff in any serious operation.

[ADDED: But, yeah, lots of last minute stuff happens on deadline.]

> big watermark on it, so it can't be used to make an acceptable mockup

Wouldn't that make it the perfect mockup material, as in, good enough to preview the finished result, impossible to land in production?

It wouldn't make it to production. Multiple design agencies send multiple mockups each to Netflix. Someone at Netflix picks a few that they like and then the original design agency has another set of artists ("Finishers") who made the high-res, non-watermarked, final image.

The problem is, if your source images have watermarks and the competing design agencies' don't, Netflix is going to pick your mockups for finishing less often because they don't look as good. The market selects for design agencies that don't use images with massive watermarks in their mockups.

Insightful reply, thank you!

Makes me ponder what other kinds of angles of approach are required to "fix" this problem.

Not really, because the blog post says the image was modified, and parts cloned, to match the aspect ratio of the final packaging. If you do this on a watermarked image, they you have to do the work again on a non-watermarked image.

Which is why a mockup isn't made with that precision.

It's only supposed to help you envision the final product, no more no less.

...and the occasional IP hiccup is the logical outcome. In this case, it should be simple enough to maybe even turn this into a microscopic PR win with swift application of money.

But there is one more if: if the box design was commissioned into the subcontractor chain by Target and not by Netflix (with Netflix only licencing the Blu-ray content), then no company will consider themselves responsible: not Netflix, because they really had nothing to do with the box design and not Target, because the bad PR will appear in front of Netflix's door.

Google Image Search also lets you to specify the license you are searching for, which is something anyone designing anything professionally should be well aware of.

Commercial stock image sites were invented for situations like this. Not having time (or whatever) to pay for your stock photography stops being a valid excuse when you rise above the level of "bake sale flyer".

Nobody had the resources to search here?

http://www.gettyimages.com/photos/vhs-tapes?excludenudity=tr...

Even so, that does not protect them. Every designer I worked made sure to get and document the license for the images used.

Also, maybe there is something bigger here: maybe someone scraped the image and resells them through shutterstock.

In any case, the owner is way within his rights. Why not insist on them? If the rubber band was on the other claw, Netflix would not hesitate.

+1 for Dr. Zoidberg reference.

This shouldn't effect the outcome though. The National party in New Zealand (the government at the time) used a 3rd party agency to source music for their 2011 TV campaign.

It turned out that the music sounded exactly like Eminem's "Lose Yourself" and he successfully sued them http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objecti...

So while it's fair to say that Netflix probably had no idea it doesn't change the fact that they're using images that were stolen.

Do graphics agencies (don't know the standard term) have some general solution to this problem? I imagine the legit ones that are serious about IP would have to be (and I'm surprised Netflix isn't run like that).

I'm guessing you'd have to do something like, require every artist to list the resources they used for their image with some link to the source and license rights. But I'm also not sure how expensive that solution is and how widely it's used.

Anyone know what measures big companies take to ensure they're not accidentally putting themselves on the hook for major IP infringement damages?

Nope. There’ll probably be something in the contract that protects the client against this sort of stuff, and the agency is in hot water now. But beyond that, there’s no real process in place. For big projects the cost of sourcing images will be billed back to the client and so everyhing works like it’s meant to. But I imagine in this case, the DVD packaging was a last minute ad hoc peice of work where the client asked a bunch of agencies (or the clients main agency asked a bunch of smaller agencies) to pitch a design for a fixed budget on a short deadline. And probably a small budget.

The agency asks a junior designer to turn the brief around in a day and says “there’s no budget, but we need to keep this client happy (if they’re the main agency) or we need to impress this client (if they’re a subcontracted agency or an agency not on the clients book).

And that’s where things went wrong. No money. No time. And a junior designer eager to impress.

Yes, certainly that's what happened. Not an excuse for anyone, but a plausible explanation.

Still the agency should have processes in place to avoid this. Every professional designer I've asked about this sort of thing is very aware.

I would add that the the client was not in fact protected. Netflix might be protected from legal action, but the reputation damage here all accrues to Netflix.

Often when you're creating something like this, you don't know if it will be the final selection. Some people can't visualise, so the designer may end up creating something without knowing it will ultimately become the final product. Given that they might make a number of attempts, it's very easy to throw in an image thinking it's temporary and forget about it in hitting deadlines and getting a project over the line.

Then unless there was a meticulous review process, I can see how someone might overlook a very default, straight on view of a generic product.

I haven't thought of this, but I indeed saw something like this happen.

Quick mockup of how it could look like, but because the client saw this first and said "this is the one I want", they actually like the mockup better than the final version with similar but not quite the same graphics.

or you make a draft or concept and they use that as the final

Yep, happens all the time. Or you say "I've used a placeholder image. Can you please select and buy a stock photo that you like?" And they never do, and it all gets forgotten.

Having been on the "creative" side of several of these kinds of graphic design projects, with some fairly large clients, I can assert that it's likely that the agency who did the design signed something to the order of "indemnify and hold harmless" for any copyright infringement suits, and has insurance for that eventuality.

That insurance is likely to get a lot more expensive unless Netflix and the agency can come to an amicable resolution with the OP.

After doing a cursory image search on Google for "VHS Tape" leads to a high res image that is in the public domain on Wikipedia [1]. Why the designer didn't use that stock image to begin with doesn't make any sense to me.

[1] https://en.wikipedia.org/wiki/File:VHS-Video-Tape-Top-Flat.j...

> but I seriously doubt Netflix knew that’s what they were doing.

Ignorance does not excuse ones culpability. This will be extremely inexpensive for Netflix to remedy the PR hit will be a little more expensive but not long lasting. Netflix is really the only fish in the pond, so people may care but have nowhere else really to go.

I suspect it complicates things further that the image creator presumably did not have permission from Netflix to use their copyrighted name and logo for his own work.

Edit: nvm, didn’t see that the logo work was not his own...

Where did he use Netflix's logo?

Right on the cover, at the bottom. It’s not just the Netflix logo, it’s the ST name and branding copied from Netflix. I’m not saying they had a right to take it, but neither did he have the right to publish this image in the first place.

He didn't make the Stranger Things cover.

He took a picture of a blank VHS tape that Netflix got from his website and used as the basis for their DVD cover.

Hah, thanks, I totally misread that it was just the VHS blank.

Assuming that no fair use applies, possibly, but that’s a conclusion built on top of a chain of assumptions that are not necessarily true at all.

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