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Author Topic: A Summary of the Getty Issue in the United States  (Read 36015 times)

Oscar Michelen

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A Summary of the Getty Issue in the United States
« on: December 12, 2008, 10:39:35 AM »
Please note that though I am a lawyer, this summary is presented for informational purposes only and not as a substitute for legal advice. I say that because every case is different and may present different defenses and liabilities. If you feel that something in this summary is incorrect or inappropriate, please send me a private message and I will evaluate whether the summary needs to be changed. Similarly, if you would like to add additional information, please DO NOT POST to this thread.  Either send me a private message asking  me to add the new information or start a new thread or post the info to one of the many current threads. This summary is derived from various other posts so if you are truly interested in the whole picture, take a look at the threads and read through the appropriate posts. Also, you can listen to the two recorded conversations on the home page between myself and Matthew Chan, this website's founder.

I. What's It All About?

Some time in 2005 - 2006, imaging companies like Getty and Corbis formed partnerships with a company called PicScout. PicScout developed a technology whereby bots trawl the internet, attach onto sites and compare images on websites to the images on the Getty and/or Corbis catalog.

When they find a match, they send the information to Getty or Corbis who then search their records for a license for that image. Finding no license, they then send out a demand letter. The rumor is that PicScout and the image companies split the revenue from the program, 50-50, but we've found no proof for that. From here on, I will address only Getty's pattern and practice.

The Getty Demand Letter

A copy of the letter is posted on the homepage. Generally, it tells you about the images found on your website and then shows you a screenshot of the image along with the copy from the Getty catalog where their image is located. They routinely demand anywhere from $1,000 to $1,400 per image. They provide a list of FAQ's which set forth that US Copyright Law is strict liability and lack of knowledge is no excuse. They provide a tight deadline for you to respond or they threaten that they will take further steps.  A second letter then comes with a shorter deadline. If that is ignored or if no settlement is reached, they send it to a "collection agency," NCS Recovery, based in Sarasota, Florida.

NCS Recovery

NCS steps up the communication stream by calling , emailing and repeatedly mailing you letters and demands. NCS began this process by saying they were attempting to "collect a debt."  When we became involved and began responding to them, they changed their position and now say they are attempting to "settle a claim."  While this may seem insignificant, it has two important repercussions. The first is that when you are  advised that a creditor is trying to collect a debt, then, under the law, anything you say to that debt collector is admissible in court. The opposite is true if you are engaged in "settlement discussions." Federal Rule of Evidence 403 and most states' laws protect settlement discussions and hold that what is said during settlement talks is not admissible. The second benefit is that they cannot report you to a credit agency or do anything to harm your credit rating. This is always the favored sword of any debt collector. Just because Getty and then NCS send you an "invoice" which you did not pay, does not make this a debt. You never ordered the images from Getty nor agreed to pay their inflated prices.  It is merely a copyright infringement claim which you are contesting. Once you tell NCS you are not paying the amounts requested, they will send the file back to Getty.

Getty's Legal Position

Liability

Getty's letters and NCS's follow-up all advise that their is no defense to copyright as the Copyright Act of 1976 makes copyright infringement a strict liability offense. Getty is not wrong. Getty is right that copyright law makes no distinction when determining if there was an infringement. Whether you took it intentionally, unknowingly or by mistake, if it is someone's intellectual property, you are infringing. They are also correct in stating that the law does not require registration.  Once a work is created the creator obtains the copyright to it automatically. There is no need to post a copyright notice or a watermark on the image. They do not need to send a "cease and desist" letter first. The Digital Millenium Copyright Act only requires a cease and desist first in cases where a search engine or web service provider like Google, Yahoo etc., is accused of allowing others to download or post copyrighted material. So on the LIABILITY side, copyright law is strict liability. Now, there may be defenses to whether one infringed or not. Getty does not own the images. What they own is the right or license to manage, sell and protect the copyright to the images. Getty obtains these rights through a written agreement with the photographers. While they will not provide you with a copy of the actual agreement (signed or unsigned) with the artist, they do provide the boilerplate text of the agreement which grants these rights.

Getty's problem (among others) is that sometimes these photographers have granted other websites the right to sell these images. Recently, I received proof that my client bought the image with the appropriate license (for US$20.00 by the way) from a company called Dreamstime. Our client then went further and found that Getty Images is not even listed on the photographer's site as being one of the company's that license his images. We are now reaching out to him personally to see if he will talk to us about how and why his image ended up in the Getty catalog. I will keep you posted.


Damages

There are two general types of  damages awarded in copyright cases: statutory damages and actual damages. Statutory damages allow courts to award large numbers per infringement and also award attorney's fees and enforcement costs. In order to obtain these valuable statutory damages, the "work," in this case the image, must have been registered with the US Copyright Office. As of this writing, about 1% of Getty's catalog has been registered.  That means in about 99% of the cases, Getty cannot claim statutory damages and may not even be able to get automatic Federal Court jurisdiction, which also requires registration. A copyright holder seeking actual damages, can only get the lost value for the image; they are not entitled to incidental fees and costs.
 
How you obtained the image DOES matter when it comes to damages. Courts award much smaller amounts for innocent infringement. Even if Getty is suing over images that are actually registered with the copyright office, a court can reduce all damages to $200 per image if the court believes it was an innocent infringement. There are countless court cases that talk about that and that award that amount.

Getty chooses to ignore the law in this area; they have tried all kinds of arguments to support their position of demanding $1,000+ per image:

(1) First, they said "Don't forget about statutory damages, like attorneys fees and court costs!." When we pointed out to them that you only get that for registered images and that 99% of Getty's images are not registered, they changed their tactic to:

(2) "Well our actual damages takes into consideration all the additional costs of enforcement." When we pointed out to them that you only get that for registered images and that 99% of Getty's images are not registered, they changed their tactic to:

(3) "Well we charge $1,300.00 for a two year license so these are our actual damages." we pointed out that they had no proof how long these images were up and that their inflated rates are not what matters; the courts state that actual damages are what a person would pay in the MARKETPLACE for the image. They then changed their tactic to:

(4) "Well you know that courts often award damage multipliers in these cases, so thats why we ask for these amounts" Our response to them was that we in fact know the exact opposite. Courts do not routinely give multipliers and almost exclusively award multipliers for registered works only. We pointed out an April 2008 memo Getty sent to its photographers stating that they should register their images immediately because without registration it would be very difficult if not impossible to get multipliers. Now their latest position is that they only mentioned multipliers an an example and that they are back to the average cost of a Getty license as being their basis for the claim.

I will keep you posted on what occurs next. But this is the point - Getty knew all of the above when they started this campaign in 2006 or so. They had to be familiar with copyright law, but they were preying on unsuspecting consumers who didn't know better and believed their "strict liability" argument. To see the limits Getty will go to, visit the FSB site (there's a link on the our homepage) to see how people in the UK are dealing with Getty's program in a region where the law says if there is innocent infringement, you pay NO damages. This clearly stated law has not slowed Getty down one bit.   

What to Do?

The first thing is to relax and realize that your legal position is not as bad as Getty makes it out to be.  There may be helpful facts and defenses on both issues - liability and damages. Try to ascertain where the image came from and locate any records you have to show how you got it onto your website. Can you figure out how long it was on the site? Try to see if you can find everywhere your contested image is available and get some details of how much it would cost.  You should take the image down from your site as soon as possible. You should contact archives.org (The Wayback Machine) which takes constant screenshots of all websites and ask them to delete the saved screenshots of your website. You should clear out the Google cache for your website as well. You then have three basic options:

(1) Ignore it:  Many folks who have been contacted about a single image have chosen to ignore it. As a lawyer I cannot recommend this tactic. Getty and the NCS will also step up their contacts with you and it can get annoying and disruptive.But, it is a fact that Getty has not to our knowledge ever sued anyone through this PicScout program so folks who have ignored it have not been sued yet either.

(2) Answer Getty yourself. This site and others put up enough information so that  a sophisticated person can respond intelligently to Getty and their cohorts.

(3) Retain counsel. Hiring a lawyer assures that you will no longer be personally contacted by either Getty or NCS as they cannot communicate with someone who they know are represented by counsel.  It is for this reason that I decided to offer the $195 letter program as a way to give people a method of responding to Getty that is low cost and effective. Please visit the homepage to see my explanation of the letter program and to understand that this is not a money-making project for me or my  firm.


Conclusion

Knowledge is power. Don't be put off by the threats and allegations.  Learn about the issue by going through this and other websites. We get contacted every day by many folks who are concerned about their businesses and cannot afford these exorbitant demands. This has been going on for about three years and there has been no litigation; there is no court decision in Getty's favor or against its legal position.  That may be coming soon, but for right now it has been a letter exchange and we have not seen anything in Getty's response which we feel effects our legal position. I hope this has been informative and helpful to those of you dealing with this issue.
« Last Edit: February 28, 2012, 07:21:15 AM by Matthew Chan »

beedee

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Re: A Summary of the Getty Issue in the United States
« Reply #1 on: December 13, 2008, 05:58:03 AM »
Oscar, thank you for an excellent summary. Your involvement is very much appreciated.

 

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