"Ask your lawyer" -- I did

[Publisher1]

After receiving the demand letter for $1200 for a single stock image used by an offshore developer, I visited here, read up on the responses, and answered with an offer of $400.00.  The counter offer:  $1,100.  After some back and forth emails, the "compliance officer" suggested I contact my attorney.

I did.  My lawyer, who has worked with me and my business for about two decades, takes the philosophy of keeping me out trouble.  Once, when my business was sued for a $1 million by a well-heeled competitor, he recommended a litigation lawyer who helped me clear the matter (with costs awarded to my favour.)  

My lawyer wrote (after I asked for evidence that Getty really held or had the copyright assigned to it) and the "compliance officer" declined to provide this information:

"I would ignore it until they tried to commence a small claims court action.  Even to pay us to respond seems excessive.  It reads like spam, frankly – amazing that they would suggest that they are not prepared to reveal the contractual basis for their claim against you.  I find that a sure-fire indication that its a scam.  Let them spend the money to sue, and then we’ll deal with it.  I would not even offer a penny at this stage."

So far, so good.  Since I ignored Getty, Getty seems to be ignoring me.

I certainly respect copyright -- in fact our business collects significant royalties for copyshop use through copyright clearance agencies -- but this demand letter stuff is, in my opinion, nothing more than an extortion racket.

[infringer]

And a lot of lawyers will discuss the matter with you for free.  The only lawyer I had ever hired before Masterfile entered my life was a real estate attorney when buying my house.  After receiving my letter from Masterfile, I contacted four lawyers and received a substantial amount of advice for free via e-mail.  That alone calmed my anxiety and helped me to look at the situation more objectively.

[Oscar Michelen]

Your lawyer basically follows the model I suggest here as well. The reason Getty rarely sues is that their images are not registered so they will not recover their legal fees

[Helpi]

"My lawyer wrote 'I would ignore it until they tried to commence a small claims court action.'

Good that she is not suggesting billable work without Getty first making a more aggressive move but I'd be concerned if my lawyer thought Getty would be filing an infringement action in small claims court.  Not a good sign. I guess if they are really good at litigation they can come up to speed on a simple case but it's a definite tip they are not familiar with copyright law.

"The reason Getty rarely sues is that their images are not registered so they will not recover their legal fees "

I wonder what their thinking is.

They must be doing this as a profit driven strategy and not as an education campaign.  Or maybe it looks good to the contributors. If I were a Getty contributor I want Getty to police my work. In fact, if I'm assigning them exclusive rights, I insist they police it or permit me to do it if they pass. Who wants Getty to handle their work exclusively if they aren't policing infringement.

[Oscar Michelen]

Their thinking is that the vast majority of folks just cut them a check of some sort.  This is definitely profitable for Getty and the others. Believe me they wouldn't be undertaking this just to show their photographers that they are enforcing their copyright. Its for the bucks.

[Helpi]

I think Getty may pass the cost of this effort on to some of its contributors. So it's all profit. -D

I was curious so I went and found Getty's "Contributor Agreement."  (https://contribute.gettyimages.com/olc/agreement/sample_agreement)

Relevant excerpts below: (eventually you drill down to "unauthorized use detection and enforcement fees and expenses").  Who knows what it means because they don't define it (always nice to have a black box in an agreement when its your money going into it...) but it reads to me like including this sort of effort ("extortion letter" as you prefer to refer to it).

==========From the Getty Agreement=============

Consumer Licenses: means (i) licenses by Getty Images or Distributors directly to members of the public...

Royalties are paid on Gross License Fees for business-to-business licenses and on Net License Fees for Consumer Licenses....

Net License Fee: means the amount actually received by Getty Images either directly from Clients or, after commissions, from Distributors, in each case minus any License Fee Deductions.

[Bold and underline added by me.]

License Fee Deductions: means any applicable Taxes, unauthorized use detection and enforcement fees and expenses, shipping and insurance charges, advertising sales commissions and fulfillment fees paid to third parties.

[infringer]

So if I understand Helpi, what that means is when you send Getty a check, they subtract the cost of enforcement (presumably whatever they paid to PicScout, any commission they paid to their "enforcement officer" and their own "enforcement fee" ) before calculating the cut that the photographer is entitled to.  Profitable indeed.

[Helpi]

I wasn't suggesting anything nefarious about it. Assuming the costs are fairly computed and allocated, it seems fair, doesn't it ?

[infringer]

Sure, it seems fair to me if I were a contributor.  However, if you're a letter recipient they will tout their enforcement costs as justification for sending you a $1000 bill for a "retroactive license" when an actual license only costs $200.  It sounds to me like they are in reality passing this cost on to their contributors (or at least a potion of it).

[Oscar Michelen]

As I have been arguing with them for the past three years, they are also not entitled to their "enforcement costs" as their images are not registered!