Fair Use Question

[landmark]

Hi all,

I got an extortion e-mail from Getty recently. I did indeed use the image in question, but I did so intentionally, believing it should qualify as fair use.

I'm a freelance writer and marketing consultant. On my company's blog, I often use examples of writing or marketing found in real life, and I critique these examples to explain whether they are effective, well-written, etc. The post which used the image is about the trend of "clickbait" and "listicles" online. I used the image (and other images) to illustrate my point. For the Getty-owned image, I even say that I found it on the Huffington Post, a popular website.

I wrote to Getty, "Because I use this image in the context of criticism and commentary, its use qualifies as "fair use." When a party's use of copyrighted material qualifies as a fair use, it is not considered an illegal infringement. Therefore, I will not be taking the image down, and I will not be sending you any money."

Getty came back saying they maintain the use is promotional in nature as it's "part of the design element of a website." But they reduced their demands from $800+ to $200. For me to pay this $200 fee, however, I have to do it within a week. Otherwise, they're rescinding the offer.

I don't intend to pay them anything. I used their image as a way to make my point, so I maintain it's fair use. Also, this one-week time frame is an intimidating tactic that I don't want to play into. What's my next move?

[The-Gobbler]

Wow.  Do you mind showing us link to the post?  If it helps your cause, I'm happy to spread the word about it and send you some traffic and attention.

[Joel Rothman]

I got an extortion e-mail from Getty recently. I did indeed use the image in question, but I did so intentionally, believing it should qualify as fair use.

I too encourage you to share the link.  However, if you are uncomfortable doing so, please feel free to send me a PM or email.

[stinger]

In my observation, Getty's m.o. has been to not let go when they have a fish on the line regardless of what the fish tells them.

I encourage you to shar your link on this board and with Attorney Rothman who is doing his part to attempt t change Getty's behavior.

[landmark]

I'd be glad to share the link, but the Getty letter also says the "terms of this settlement offer shall be kept confidential..." so I'll hold off for the time being. I'll PM Attorney Rothman for his opinion. If it seems advisable, I'll go ahead and post it.

In the meantime, what can Getty do if I refuse to pay and have a strong legal argument behind me? How can they sue me and have a judge arbitrate when we're not even in the same state?

[stinger]

Odds are they will NOT sue you.  They only sue a small, hand picked fraction of those they threaten to sue.  The economics of filing a lawsuit for such a small settlement just don't work in their favor.

Their confidentiality statements are designed to keep them in business.  They want to keep their trolling activities quiet.  We want to make their trolling activities public, so the ensuing outrage might get lawmakers to put a stop to their activity.

Get educated.  Read what you can in the forum.  Share what you know when you are comfortable.

[Joel Rothman]

17 USC 107, the fair use statute, says:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
As to factor 1, the purpose and character of the use is for criticism and in this regard I would consider what you have done to be transformative, and so this favors you.   

The question of fair use does not turn simply on whether the photographs themselves were unaltered. Rather, as the relevant jurisprudence makes clear, the salient inquiry is whether the use of the photos, in the specific context used, was transformative. See Perfect 10, Inc., 508 F.3d at 1164 ("a search engine puts images 'in a different context' so that they are 'transformed into a new creation.'") (emphasis added). In that regard, the Ninth Circuit has consistently held that "making an exact copy of a work may be transformative so long as the copy serves a different function than the original work[.]" Id. (image originally used for entertainment or aesthetic purposes was transformed where defendant used the same image to facilitate use of an internet browser to locate information on the web); Kelly v. Arriba Soft Corp., 336 F.3d 811, 816 (9th Cir. 2003)  [14] ("exact replication" of protected images was fair use where used in a different context from the original); Mattel, 353 F.3d at 802 (photographs of Barbie dolls "in various absurd and often sexualized positions" parodied "Barbie's influence on gender roles and the position of women in society" and hence was transformative); see also Nunez v. Caribbean Intern. News Corp., 235 F.3d 18, 22 (1st Cir. 2000) (holding that use of unaltered pictures in conjunction with editorial commentary gave them "new meaning" sufficient to transform the works into a "newsworthy" use); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 115 n.3 (2d Cir. 1998) (application of the fair use doctrine is particularly apropos where the use of the work disparages the original).

See Sedgwick Claims Management Services, Inc. v. Delsman, No. C 09-1468 SBA, July 17, 2009  See also Katz v Chelvaldina
Factor 2 is not really relevant.  Factor 3 favors Getty.  Factor 4 favors you.
Score: You 2, Getty 1. 

[Matthew Chan]

I'd like to add that Joel Rothman (his law firm actually) is an active plaintiff in their case against Getty Images. I believe Joel is actively seeking relevant information in support of his case and accusations against Getty. (I happen to be in alignment with Joel that Getty is reckless with their operation.  Getty uses amateur $15/hour clerks who take many of the bullets for their cowardly internal lawyers who make around $100K-$150K/year in their cushy little gig and stay silent and in the background.)

If Joel is openly asking for information, I would be inclined to support his efforts and email him what you have.

[Robert Krausankas (BuddhaPi)]

""terms of this settlement offer shall be kept confidential..."

who the fuck is getty to tell you this!!! this only applies if you agree to it in writing...ntuarally when getty sees this, they will remove the 200.00 offer because Getty Images and the Likes of McCormack Law are douchebags.

[Jerry Witt (mcfilms)]

The fact that they abruptly dropped the amount they were looking for indicates they don't have a leg to stand on.

[landmark]

Thanks for the legalese and the support. So I still have some questions:

• How should I respond? I believe that I should send them the text that Joel Rothman sent me and reiterate my position that I'm not paying them and not taking the image down. Do you agree this the best course of action?
• How should I expect Getty to react?
• What should I do about their stipulation that things should remain confidential? I suppose it doesn't matter because I'm not agreeing to their terms, but do I need to be careful with this aspect of dealing with them?

[lucia]

landmark,
The way you should respond always depends on your judgement. It involves balancing risks and deciding what you value. So, for example: you could:
1) Not answer and ignore them.
2) Offer then $200 but stipulate that you aren't willing to agree to a gag order-- rather you plan to discuss the situation widely.
3) You can fork over the $200 and agree to the gag order.
4) You can offer some other amount.
5) You can re-iterate your fair use argument and tell them you are not paying.
6) You can re-iterate your fair use argument and tell them that admitting no guilt, to get this behind you, you are willing to give them $200 (or whatever.)  Decide whether you are willing to go with the gag order.
7) You can hire an attorney and have the attorney speak to getty images.

To the extent that you refuse to pay the may sue. It's not likely-- they generally don't. To the extent that you fork over money, they won't sue. 

If I were you and I thought my use was clearly under fair use, I'd do (5). If I thought my fair use argument was poor... I wouldn't explain it to them, but I might just fork over the $200-- possibly even accepting the gag order. (I'd be grumpy about that though.)

[stinger]

I suggest you treat them like jungle animals.  If you show fear, they will not relent.  If you show that you are willing to inflict harm on them, they may back off and chase easier prey.

But, above all, what Lucia says is true.  You need conviction in whatever approach you choose to take.

[lucia]

I should add an observation. Getty Images dropped the demand to an amount exactly equal to Oscar's Letter writing program.   My guess is they know that lots of people pay Oscar and have dropped this demand to that level precisely to give someone a choice between putting $200 in GI's pockets (which would settle it once and for all) vs. putting it into Oscar's on a case GI knows they will never pursue.   That's my guess though.

[stinger]

Interesting observation!  You may be on to something there Lucia.