Gallery Stock settlement letter

[Dreamer]

Hello.
I received a settlement letter from gallery stock, which is under getti images, demanding $500.00 for a small image used on a blog post over a year and a half ago. I removed the image and did a lot of research before I replied. In my reply I thanked them for the letter, let them know I removed the image and was unaware that it had a copyright to it (inconsequential, I know but still true) included 5 comparable images that ranged from free to $5 for licensing and also included these requests:

*Please provide a clear explanation as to how gallery stock has determined the valuation of this image as being so far above comparable images.
*Sales data for the image for each size and use.   
*Proof that gallery stock has the right to manage the image in question.
*Proof of proper copyright registration and the chain of title for the image.
*Please detail your costs incurred related to the pursuit of this case

They replied with this (in a nut shell):

The amount of traffic or revenue for the infringer is immaterial.
Sales data and records are confidential and will not be provided.
Images do not need or require copyright registration or notice of copyright in order to be protected under the copyright act. A copyright exists automatically from the moment that a photograph is taken.

They still want the full $500.00.

I have 2 questions now, can they just throw out any old amount they want from me without providing how they came to this amount? And is it worth paying the attorneys that run this forum the $195.00 for a letter to be sent to gallery stock? At best, I understand, the letter could end this once and for all, but could there also be smaller settlement reached? If there is a smaller settlement reached, combined the $195 I pay the attorneys, it could be a wash or close to a wash.

So I'm feeling directionless at this point. $500.00 is very devastating to have to part with.

Thanks in advance for any thoughts. 

[stinger]

1.  Yes, they can throw out any amount they wish.  The problem is, if it got to a court of law, the judge might want to get around to license value of the image in adjudicating the case.  So your question was a good one.  Their answer BS.
2.  As to whether or not you should hire Oscar, that depends on whether you would rather deal with this yourself for the next three years, or spend $195 to have someone else do that for you.  Chances are that no one is going to take you to court over $500 either way.

By the way, they are correct that images do not require copyright registration, but I think they dodged the question you asked.  Whose photo is it?  Did they take it?  If not, did the photographer confer all copyright rights to them?  Can they prove this to you?

[Dreamer]

Hi Stinger,

Thanks for your response. They provided me with an agreement, I assume with the photographer, that states:

I hereby confirm that the exclusive, worldwide right to license and distribute the aforementioned
image(s) has/have been conferred by the respective photographer.
This includes the exclusive rights to pursue all available legal remedies (e.g. cease and desist
demands; information, compensation and reimbursement claims) in respect of any unauthorized use
of the image(s).

As authorized signatory, I can confirm that requisite internal checks have been under taken to verify
the accuracy of the above statement.

It is signed by a Melissa Kelly but the photograph in question is attributed to a Richard Ansett.

[stinger]

That's interesting.

I assume Melissa Kelly works for gallery stock.  They might let photographers submit their photos with a click thru agreement.  If so, the question becomes, will that hold up in court.

To be sure it would hold up in court, I would like to see the transfer document signed by the photographer and by gallery stock.  That doesn't mean it won't hold up in court, but it might not.  There have been cases in the past where the courts didn't like the click thru rights transfer.

[Greg Troy (KeepFighting)]

I would require them to provide a copy of the signed contract giving them legal rights to collect on behalf of the artist.  They can ask for anything they want, I can ask for 20,000 for my old 1998 pickup truck, doesn't mean it's worth it.  I can ask 20,000 for my neighbors new truck, is it worth it?  Yes.  Do I have the legal right to it? No.

I have never understood why people pay without proof of claim. I suggest making any offer or continued negotiation for that matter contingent on proof of claim being provided.

[Dreamer]

Hi Greg,

Thank you for replying. I went through their site and they have a lot of his work so I believe they do have the right to his work. Although I am not sure why they provided me with an agreement signed by someone else. Anyway, you think I should still require more proof and then offer them a reduced settlement? You don't think asking them - again - to provide information on how they came to their price is worth it? Thank you for your time.

[Greg Troy (KeepFighting)]

You can still and should ask for how price was determined but proof of claim is paramount.  The contract you mentioned signed by someone else may be an issue.  Getty sued Advernet for the use of 35 images, Getty won the case by default (Advernet could no longer afford to pay their lawyers and did not show up for court.  Getty won, the courts looked at the evidence presented so far and determined that their were issues with the registrations, paperwork and contracts on every images that precluded Getty from receiving any monies.  Getty won and got nothing, not even legal fees. 

I would not negotiate with anyone who will not provide proof of claim and certainly not pay them anything without that proof. Think about it, what other business could get away with presenting someone with an invoice and demand a high dollar payment and when you ask about it and to justify it you are told no and that the proof will only be shown to the court when we sue you.  Now pay us or will sue you.

I would also start invoicing them for your time as Jerry suggested for every letter you have to answer that does not contain the proof you requested.

[Dreamer]

I've noticed in some of these threads that people recommend not to correspond with these extortionists via email. Why is that?

[Robert Krausankas (BuddhaPi)]

I've noticed in some of these threads that people recommend not to correspond with these extortionists via email. Why is that?

email isn't all that "official", professional conduct for anything legal should simply be done by spending money on a stamp.. who's to say if I email you , you even get it? or that it doesn't land in the spam folder? when you get that famous nigerian email, do you take it seriously? I think not... Not to mention it's good to have hard copies of everything, emails are easily spoofed, edited, etc..

[Dreamer]

I am preparing my response letter to Gallery Stock. In my first letter to them I requested:
* A clear explanation as to how gallery stock has determined the    valuation of this image as being so far above comparable images.
* Sales data for the image for each size and use. (they are demanding I pay $500 when I found many comparable images for just $5) 
* Proof that gallery stock has the right to manage the image in question.
* Proof of proper copyright registration and the chain of title for the image.
* Please detail your costs incurred related to the pursuit of this case

They responded by telling me "The amount of traffic or revenue for the infringer is immaterial.Sales data and records are confidential and will not be provided. Images do not need or require copyright registration or notice of copyright in order to be protected under the copyright act. A copyright exists automatically from the moment that a photograph is taken. Federal copyright law does not require us to provide anyone with certificates of registration and leaves the option of filing for a federal copyright registration to the individual photographer. Our clients have contracts with contributing photographers who own the copyright of the photographer’s images, and who represent and warrant that they are the sole copyright owners. A rights holders  form has been attached for your reference."

As I mentioned in previous posts, the rights form they provided was not signed by the photographer the image is attributed to. Should I ask for all this information again? To pay them $500 will literally be choosing between paying my mortgage or paying them.

I was going to take advice from one of Troy's other threads to request they provide proof that:

1) The image is properly registered.
2) The have the exclusive rights to the image.
3) The provide a signed agreement showing the owner of the work has given Getty the right to collect monies on behalf of the artist.
4) Show sales for the last 24 months on the image justifying the amount they are requesting

But will I not get the same non answer from them? They haven't offered to lower their demand price or anything. Is it worth throwing in there that I could be a potential customer to them considering I do use images on my site (my own images or ones I get from istock)?

Thanks!!

[stinger]

First, you need to understand that they are not here to settle on something fair, they are here to get all they can.  Let me try to explain why you are asking for what you asked for:

1) The image is properly registered.  - This determines how much they might collect in court.  Maximum damages are different for a properly registered image than a non registered image.
2) The have the exclusive rights to the image. - This determines if they have the right to ask for anything.  Only one entity may hold the right to pursue copyright infringement.  This is usually where the trolls slip up.  That's why they usually avoid answering this question.
3) The provide a signed agreement showing the owner of the work has given Getty the right to collect monies on behalf of the artist. - This agreement will tell what kind of relationship Getty has with the artists.  If the artist did not transfer full rights to the image to Getty, Getty cannot pursue copyright infringement and win.
4) Show sales for the last 24 months on the image justifying the amount they are requesting - Generally a court will ask this to keep their demands in line.  They should be asking for something reasonable.

I am interested in this part of their response

A rights holders  form has been attached for your reference."

  What is this rights holders form and what does it say?  Is it signed and dated by both Getty and the photographer?  If not, it may not hold up in court.

You can play the letter game with them, if you like.  It may ease your conscience.  Generally, it results in them pursuing you harder because it lets them know you have a conscience.  If you choose to play the letter game, be careful that you do not reveal anything that may be detrimental to your cause should this thing escalate.  It likely won't.

[Dreamer]

I can make an image of it. Should I send it to you privately or would it possibly be a problem if I post it in the forum?