Another Newby Masterfile

[joee]

I just received our Notice of Copyright Infringement from Masterfile on Monday.  I am reading the forums on where to even begin with all of this.
Our company blog was linked to another blog who used the image.  Not sure if we copied the image from their blog and uploaded it or it somehow came up when linking the blogs. I am not a "blog master" at this point by any means.
Masterfile is demanding $2540 for the retroactive use of this one image since Sept 19, 2012.  When I phoned Masterfile,  I spoke with Geoffrey Beal Copyright Compliance Officer ext 2276 who informed me that I have to pay up even though I removed the image from my  blog.  (I also remove the image from m blog media library) I told him that I can not afford this kind of fee and that I felt it was excessive.  He then said for me to send in my P&L statements and other personal info to him, so that he could arrange a possible payment plan of $250 a month for 3 months.  That there, left an uneasy feeling with me. I thought when speaking with him, that this was a scam.  I am also tempted to ignore it all.
I am so grateful to my son who found this website. I may just enlist the help of Oscar to handle this for us.  The image originally came from Google images on the other blog.  I often get my own images from Google or Bing.  This needs to stop! I am trying to alert the media to all of this as well.  I think others need to be informed of what is going on and that this site is here to help us.
Back to work for me now.  Scanning the forum for where to even begin with all of this.  I am assuming a response letter is required. If anyone can direct me to the "start", it would be very much appreciated.

[Robert Krausankas (BuddhaPi)]

more importantly you need to STOP getting images from google or bing..or anywhere else for that matter. (unless you create them or purchase them)
I would refrain from contacting MF again, and I certainly would not give them any info..

[stinger]

joee,

There are lots of suggestions for how to proceed on this website.  I have been on this site for 9 months and have never heard anyone complain about having hired Oscar.  That's a process that will get you out of the loop and back to business.

Most importantly:

• Do not speak to them by phone or email
• All contact should be by registered letter, so you have your case documented in case it should ever escalate - it likely won't over one image.
• Admit nothing.  The burden of proof should be on them.
• Have they proven to you that they own the images or have control over the copyright?
• Have they proven to you that the images are registered with the copyright office?
• Have they justified to you the price they are asking?
• If they can't even convince you, what makes you think they will be able to convince a judge?

Copyright trolls tend to prey on the fears of good people.  Don't give in.  Read the forum.  You can choose to pursue this on your own or with Oscar or Matt's help.  In any case, it should cost you far less than what they ask.

[joee]

Yes have definitely learned a lesson about getting images from Google or Bing!  Never again.

[joee]

Thank you Stinger!
I did contact them by phone and email.  However I did say that I wasn't sure how the image ended up on our blog that if it just showed up, on linking or if we actually added it.  I also stated that we normally do not use images for this reason specifically, unless they are our own. However I am still not sure how the image ended up on our blog nor did I even realize it existed.  When emailing Geoffrey, I did say that it was a link to another blog. 

He stated that they had to pay the artist, so basically I have to pay up.

I received the Notice of Copyright Infringement that the others have stated receiving, with the screen shot and of course the bill of $2540.  What I find interesting and perhaps is irrelevant, is that I am being billed, retroactively for an image until 12/06/12 and the image was removed 11/26/12. 

I am not contacting them further nor do I intend to send in our company records. 
I was reading another post where they discussed spiders and bots on their website and were suspicious if this is how the image was found.  Well in the past month or so, our blog has been hit by spiders and bots with links back to spam sites.  Wondering if this is how it was discovered. 

I am a bit anxious because the letter states that I have to pay up in 10 days.  Not sure if I don't if something worse will happen.  The letter is dated 11/22/12 and I was out of town and received it on Monday.

I am new to all of this.  UGH!  A lot to learn!

[Robert Krausankas (BuddhaPi)]

Don't sweat the "deadline" date, it's part of their fear tactics, Stinger give good advice and is spot on on all points.  Yes this is a time suck and there is plenty to learn, just keep in mind the positive side to all of this..you'll get an education, hang out with great people, and maybe even be able to help others going forward..not to mention the beating back of dirt bag copyright trolls..

[Jerry Witt (mcfilms)]

They want $2500 for two months of an image that may have been hotlinked from another blog? Unless that image used diamonds for pixels, there is no way that is even close to reasonable.

At this juncture you either hire Oscar and be done with it, or you research this site and refuse to pay any money until they document other examples of images that have sold for this rate. Since it is MF, there is a good chance the copyright is registered, but I would insist on getting proof of registration and a copy of their exclusive agreement with the photographer. I would do all this under the guise of evaluating their claim (while not admitting guilt).

[Robert Krausankas (BuddhaPi)]

and if they do supply registration, keep in mind they just lost a big case where the registration was thrown out as useless...

[joee]

So the update is that I received a phone message out of the blue from Geoffrey Beal yesterday, stating that they have reduced my fee to $500.  Not good enough.  Unless it is reduced to $0, I will be contacting Oscar and he can add this to the list of lost cases to go along with the $6 million dollar case.

[Robert Krausankas (BuddhaPi)]

So the update is that I received a phone message out of the blue from Geoffrey Beal yesterday, stating that they have reduced my fee to $500.  Not good enough.  Unless it is reduced to $0, I will be contacting Oscar and he can add this to the list of lost cases to go along with the $6 million dollar case.

Further proof that even Masterfile themselves know full well the image is worth next to nothing..stand your ground..and i wouldn't take any calls from them, but do indeed keep the messages, just in case it gets out of hand..

[lucia]

  When emailing Geoffrey, I did say that it was a link to another blog. 

He stated that they had to pay the artist, so basically I have to pay up.

If the image displayed at your blog but only because it was a link to an image hosted on someone elses server, you need to read my response to Getty:

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/recieved-a-demand-letter-today-what-do-you-think-of-my-response/msg9271/#msg9271


The part of particular relevance to you starts with "second" and I'll requote here:

Second: I have read over both the 2006 Ruling regarding  PERFECT 10, Plaintiff, v. GOOGLE, INC., et al., Defendants from   "United States District Court, C.D. California"  and that regarding Perfect 10, Inc. v. Amazon.com, Inc., et al. 487 F.3d 701, No. 06-55405 (9th Cir., May 16, 2007).   I note that DMCA is mentioned and discussed by the District court in footnote 10 of the District Court ruling where they say,

"Google also contends that it qualifies for protection under each of the four DMCA safe harbors, 17 U.S.C. § 512(a)-(d). In light of the ensuing analysis concluding that Google is neither vicariously nor contributorily liable, it is unnecessary for the Court to deal with the DMCA issues."

The plain meaning of the text indicates that any protection that might have been afforded Google by the existence of  DMCA was irrelevant the courts ruling because Google had not violated any of the copyright holders rights under copyright.  I  have not copied or displayed "Catalog Image No eb2511-001" as those terms are defined by US copyright law  So, whether Google, Amazon or I are or are not protected by DMAC in the event that we might inadvertently violate someone's copyright would seem irrelevant.  I'm puzzled that you brought your opinion about the applicability of DMAC up.

I would now like to point out that in my first letter I also brought up the issue of fair use.  In the event that GettyImages might believe contrary to court rulings that including html instructions to an image at a third party site constituted  infringing use under US copyright law, my particular use would in any case fall under fair use for reasons I mentioned in my first email to you. You have not address this point.
 
Because you have so far stated you do not consider the matter closed,  I believe must request information from GettyImages.  While continuing to maintain that I have neither copied nor displayed "Catalog Image No eb2511-001" as those words are defined by US copyright law, I request the following information regarding GettyImages "Catalog Image No eb2511-001" required to ascertain whether GettyImages has standing to pursue any claim or negotiate any settlement and to assess whether the suggested amount of the settlement would be reasonable.

My specific requests are below:

1) Please provide me with proof that the GettyImages "Catalog Image No eb2511-001"  has been registered at the US copyright office or copyright office in any country either individually or as part of a collection,  including any collection name, registration numbers, dates of registrations,  renewals of registrations, names of copyright holders and any and all records indicating the copyright ownership may have transferred to any new owner and on which dates copyright ownership transfer may have occurred.  Your Nov. 4th letter indicates that the photographer was "Mother-Daughter Press".  I believe such items should be easily accessible in files GettyImages maintains for the image in question; your obtaining and providing these should be little more than a clerical matter.

2) Please provide me documentation that Getty Images now holds and has held the exclusive license this image spanning whatever time period you believe is relevant to your allegation of a copyright violation related to the image discussed in your first letter to me. I believe such items should be easily accessible in files GettyImages maintains for the image in question; your obtaining and providing these should be little more than a clerical matter.


3) Please explain your basis for requesting $875 for whatever use you infraction you allege with regard to this image.

I believe there is reason to doubt Getty images holds an exclusive right to license images, and also suspect the settlement demand is excessive in light of a number of factors including, but not limited to the following:

a) A digital copy of what appears to be the image in question is available free of charge by visiting ("Mother-Daughter Press & Gay Bumgarner Images" ( i. e. http://www.gaybumgarner.com/)   , searching for "cardinals", clicking the image itself and then clicking "download" . The Mother-Daughter Press & Gay Bumgarner Images"  website appears to be owned and operated by the party listed as  "photographer" of your "Catalog Image No eb2511-001"  and the  57.5 kb available for free is larger than the 14kb copy hosted at the third party site I linked.  Absolutely no usages restrictions are indicated when that digital image is downloaded. (See attachment 1 below.)

b) A digital copy of what appears to be the image in question can be downloaded for free accessing it through  photoshelter.com's user interface.  Photoshelter.com lists the image as "PhotoShelter ID: I0000NJj3T3XcwKU"  (See http://www.photoshelter.com/lbx/lbx-img-show?L_ID=L0000f7CHJUlwcGk&_bqG=0&_bqH=eJxLjMot9wh1D0izLI3wzQgNdPKrKgxPNM02S_G0MrIyMrWy8on3dLH1MQCCNHNnD6_QnPJk92w1H8_4YP.gEFsg7Rzi6esKE4h38QyydQx2BvF9PN09Qpz8I7AaUFCQbmtkCgC88CZL&LI_ID=LI000.2F242ES7zc )

c) Much lower costs licenses permitting web display of larger higher versions of this image are available through photoshelter.com (see attachments  2  below.)

I believe that since GettyImages has already presented me with a demand letter for $875, providing records and an explanation of  the basis for demanding $875 along with records documenting who owns the copyright and your companies exclusive right to license the image should amount to little more than a clerical matter.

I close by noting that it remains my position that there has been no violation of the copyright holders rights to copy or display this image in the matter you described in your Nov. 24, 2011 letter.

Sincerely,
Lucia Liljegren

In the US, the 9th circuit court ruled that hyperlinking is NOT copyright violation. Whether Masterfile "has to" pay their photographer is irrelevant.  None of the other circuit courts have ruled on the issue. But given the fact that this is the highest court ruling to date,

1) If you are in the 9th circuit masterfile would have to be nuts to go after you for a hyperlink ruling hoping to get the SCOTUS wold overrule the 9th and
2) If you live in another circuit, they would have to be nuts to hope one of the other circuit courts would rule in their favor on this.

Get a copy of the two Perfect 10 rulings, read, and take a big sigh of relieve. (Well... provided you are in the US.)

[lucia]

(I also remove the image from m blog media library)

Hmm... if it was in your blog media library, you may have made and displayed a copy.  If this continues, you will need to discover whether your blog displayed an image hosted on your server or an image hosted on someone else's server.  That is key. If the image is displayed  as a "link to another blog" that's legally different from an image displayed from a link to your own server (or some server region under your own control.)

[Oscar Michelen]

I have never heard of Masterfile going down to $500 so quickly, so I suspect they know they have a weak case against you.

[Robert Krausankas (BuddhaPi)]

I have never heard of Masterfile going down to $500 so quickly, so I suspect they know they have a weak case against you.

Or they are hoping that by lowering it to 500.00 Oscar won't get involved...I'm sure they are still a bit sore from the last whipping! 

[Greg Troy (KeepFighting)]

Yes, Oscar did put a whipping on them didn't he? Well maybe this will help sooth MasterFails pain.

I have never heard of Masterfile going down to $500 so quickly, so I suspect they know they have a weak case against you.

Or they are hoping that by lowering itto 500.00 Oscar won't get involved...I'm sure they are still a bit sore from the last whipping!