4th Getty Letter

[DavidVGoliath]

That is NOT a major reality check.  It is only one person's opinion and that person is not a "regular" fighter or opponent of Getty and their ilk.

... hence my prefacing that I was playing Devil's Advocate 

Like I said: FotoQuote is very widely used software and provides third-party data without bias, especially if you want to answer the question as to what a fair rate for an image license might be. In a recent UK court case, FotoQuote was referenced by both the plaintiff and defendant in their arguments - you can read how that played out here

http://www.bailii.org/ew/cases/EWPCC/2013/26.html

Also, Robert brings up an important point.  Even if the price is "legitimate", it doesn't mean that any ordinary person would have ever bought or agreed to such outrageous pricing.

Again, you're mostly correct: in a free market economy, a prospective buyer does indeed have a choice when it comes to how much they want to pay for a given commodity in advance; value judgements are made based on a raft of considerations, with budget almost always being one of the core factors. Freedom of choice allows you to elect for an alternative, lower priced commodity - or perhaps pass entirely.

However, when it comes to the legal aspects of copyright infringement, we're no longer talking about one's opinion as to whether the fee is outrageous or not; instead it becomes a question of actual damages - and the plaintiff has to show that the sum they're asking for is reasonable and in-line with industry averages.

This leads me back to the Sheldon vs. Daybrook House case I referenced earlier; in the ruling, the judge was not concerned about how much the Daybrook House offered or wanted to pay - the judgement was rendered based on how much Sheldon could have legitimately licensed the image for to a genuine buyer.

Coming back to CaliBoy's issue: he's perfectly free to refuse to engage with Getty as they're not offering up the reasonable evidence that he's asked for. I personally detest their we'll-furnish-you-with-evidence-when-we-file-suit tactic as it implies that such evidence does not exist.

From my own perspective, making an offer to settle a civil claim for any matter is best done by presenting all the evidence and facts at the offer stage... otherwise, it's all noise and static.

[CaliBoy]

I fell to sleep last night thinking about Getty and the possibility that I could be one of the few "lucky" ones who accidentally used an image that was already registered with the copyright office. The first thing I did this morning was double-check the online copyright records database, searching for anything having to with the image (image name, image number, Getty Images, Image Bank, photographer's  name, etc). The photographer does appear in 1 listing, but the copyright claimant is Masterfile Corporation. Other than that, I guess the image could be part of a compilation and that would limit my ability to find it via a records search. Maybe I'm just being paranoid. Getty sucks.

[Oscar Michelen]

CaliBoy - another point on this issue is that anyone's pricing scheme is just one piece of evidence. Actual licensing fees among similar uses and similar users for similar images would also be admissible proof of the market value of the image.