This is my first post on this forum, but I have been an occasional lurker since October 2013.
Here is some background on our situation:
My wife, has a very small business, which is barely profitable. I put up a website for her business around Feb. 2012.
I looked online for a simple image for an illustration. I used a small thumbnail sized image from a Google image search. I do not remember exactly where I got the image, but I did not pay for it, and wrongly assumed that if the image did not have a watermark, then it was in the public domain and was free to use.
In October 2013, my wife received the standard letter from Getty Images, addressed to her place of business. The amount demanded was over $800.
I immediately removed the image from her website, and began researching the matter, and discovered this forum almost immediately.
The alleged copyright infringement concerns an image designated in the Getty Images Catalog, listing the photographer’s name. Out of curiosity, I checked the price Getty Images would charge for a one year licence to use this image on a web page in the United States. Their price was an astounding amount of over $600.
Searching the U.S. Copyright Office for all copyrights under the name of the photographer, only one work is listed. That image has a Getty Images number, but that image is completely unrelated to the image in question.
Searching the U.S. Copyright Office for all copyrights for visual materials under the name Getty Images, yielded 131 results. None of these appears to have any connection with the image in question.
Searching the U.S. Copyright Office for all copyrights for visual materials under the name “The Image Bank”, yielded no results.
Searching the U.S. Copyright Office for all copyrights for visual materials under the title that Getty Images has attached to the imagine in question, yielded no results.
Searching the U.S. Copyright Office for all copyrights for visual materials under the keyword, document number, or registration number for the specific Getty Image number yielded no results.
The conclusion is that no properly registered copyright for this image exists.
Using the free online search tool, TinEye, there were 61 worldwide results for an image match.
Apparently this image is relatively popular and is used as an illustration on websites for similar businesses. Did any of these 61 users of this image purchase an exclusive rights licence? Probably not.
In fact, purchasing a “Rights Managed licence” for this image from Getty Images, would not guarantee that the purchaser and only the purchaser would have exclusive rights to use the stock image during the license duration.
A second standard cover letter, came from Getty in Nov. 2013, with a copy of the initial Oct. 2013 Getty letter. A third standard form letter, dated Feb. 2014, came from McCormack, and demanded over $1300. In Mar. 2014, my wife received an email from Lauren Kingston with McCormack, demanding the same amount of over $1300.
Based on what I have read on the extortionletterinfo.com forums, we have not responded to any of the letters or the email.
I have considered the Oscar Michelen's Getty Images Defense Letter Program, which would cost us money we don’t have to spend.
I have a paid membership with Pre-Paid Legal, and was considering the possibility of letting my Pre-Paid Legal attorney fire back a letter to Getty, informing Getty that we had legal representation, and requesting from Getty, evidence of a valid and proper Certificate of Registration issued by the United States Copyright Office of the image in question.
It is anticipated that Getty Images will only respond with a statement similar to the following:
“Since formal legal proceedings have not yet commenced, copyright registrations are irrelevant at this time.”
It is my understanding, that without a proper Certificate of Registration issued by the United States Copyright Office, Getty Images cannot be awarded statutory damages and legal fees. Damages would be limited to “actual damages” which would be fair market value or what the market would pay for the image, not the grossly inflated amount that Getty Images wants to charge for a Rights Managed Licence. Fair market value would likely be something around $49.
A letter from my Pre-Paid Legal attorney would probably temporarily end the letters from Getty and McCormack to her place of business, but I don’t think my local Pre-Paid Legal attorneys want to participate in a 3 year letter writing exchange. My Pre-Paid Legal membership only covers a maximum of 2 attorney letters a year. If we are sued, then we would get representation from Pre-Paid Legal and a certain amount of Pre-Paid Legal attorney trial preparation hours would be covered.
The main reason for this forum post, is that I had an interesting long conversation with a very experienced Mississippi trial and tort attorney about this matter. He was sort of my captive audience for over 4 hours and I think I beat the subject to death with him. He is in his 80's but still has a sharp mind. He has a background as a prosecutor, a defense attorney, and as a trial judge. The following is the gist of what he advised:
Ignore the letters. If even one response is sent back to Getty, it will tell Getty that they have some potential to get money and Getty will redouble their efforts to instill fear with their letters. The act of a response to Getty will be as if we painted a target on our backs.
The Getty letters should go in the same place that is used for advertisements for Viagra, Nigerian money transfer scams, and other junk mail.
If Getty actually sues, only then should we respond.
He agreed that the Getty letter writing campaign is a form of extortion. The reason Getty only attacks the small business owner, is that Getty knows that a certain percentage of victims will succumb to their own fear of being sued, and just roll over and pay Getty to be rid of the persecution. The increasing demand amounts and short response deadlines are a form of psychological warfare. Some victims will pay an inflated amount, fearing that it would be better to pay a high amount now, than let the demand amount increase even higher in the future. This thinking is sort of like picking the lesser of two evils. Getty knows how to exploit this part of human nature.
Of particular note, is that this very experienced trial attorney and judge, explained that the thinking that many people have, which is that they should at least make a good faith attempt to resolve the matter, so that if the case goes to trial, the judge will know that you did not simply ignore Getty, is not correct. The judge will not care if you ignored Getty or responded. The judge will only be interested in the facts. He explained, in legal terms, that if you send a response to Getty, the court will interpret that your act of a response was because you believed that you were obligated to respond. This is akin to an admission of guilt, or at the very least, an admission of responsibility.
The converse is also true. I you do not respond to Getty, it is because you believed that you had no duty to respond. If Getty sues, and if the case goes to trial, and if the judge asks why you did not respond to the Getty letters, then you can tell the judge that you did not believe that you had a duty to respond. You did not respond, because you did not have to.
Getty will not likely sue over such a small amount. There is not enough money in it for them.
I asked this very experienced trial attorney and judge if I should get my Pre-Paid Legal attorney to fire back a letter to Getty, even though it would not cost me anything. He said no.
I asked him if I should use the Getty Images Defense Letter Program. He said he wouldn’t recommend that either, because it would only encourage Getty to engage in an long, drawn out negotiation.
So the bottom line is this:
IGNORE THE LETTERS FROM GETTY AND McCORMACK.
ONLY RESPOND IF YOU ARE SUED.
It is extremely unlikely that Getty will sue over a small amount. It would cost Getty more in attorney fees than they could potentially get out of the victim if Getty prevailed in court. There is more potential monetary return for Getty’s efforts by using fear and intimidation in the form of an unrelenting stream of letters.
So our decision is to continue to ignore the correspondence from Getty and McCormack. In the extremely unlikely event that Getty sues us, then we will respond by using an attorney.
I think that the advice from the experienced judge and trial attorney was sensible, and useful enough to post on this forum.
It is expected that this legal advice may create some controversy. It is not my desire to engage in a debate about the merits or pitfalls of ignoring the Getty letters. My motivation for sharing this information is to solicit the learned opinions of others on this forum, and perhaps create some productive discussion.
Here is some background on our situation:
My wife, has a very small business, which is barely profitable. I put up a website for her business around Feb. 2012.
I looked online for a simple image for an illustration. I used a small thumbnail sized image from a Google image search. I do not remember exactly where I got the image, but I did not pay for it, and wrongly assumed that if the image did not have a watermark, then it was in the public domain and was free to use.
In October 2013, my wife received the standard letter from Getty Images, addressed to her place of business. The amount demanded was over $800.
I immediately removed the image from her website, and began researching the matter, and discovered this forum almost immediately.
The alleged copyright infringement concerns an image designated in the Getty Images Catalog, listing the photographer’s name. Out of curiosity, I checked the price Getty Images would charge for a one year licence to use this image on a web page in the United States. Their price was an astounding amount of over $600.
Searching the U.S. Copyright Office for all copyrights under the name of the photographer, only one work is listed. That image has a Getty Images number, but that image is completely unrelated to the image in question.
Searching the U.S. Copyright Office for all copyrights for visual materials under the name Getty Images, yielded 131 results. None of these appears to have any connection with the image in question.
Searching the U.S. Copyright Office for all copyrights for visual materials under the name “The Image Bank”, yielded no results.
Searching the U.S. Copyright Office for all copyrights for visual materials under the title that Getty Images has attached to the imagine in question, yielded no results.
Searching the U.S. Copyright Office for all copyrights for visual materials under the keyword, document number, or registration number for the specific Getty Image number yielded no results.
The conclusion is that no properly registered copyright for this image exists.
Using the free online search tool, TinEye, there were 61 worldwide results for an image match.
Apparently this image is relatively popular and is used as an illustration on websites for similar businesses. Did any of these 61 users of this image purchase an exclusive rights licence? Probably not.
In fact, purchasing a “Rights Managed licence” for this image from Getty Images, would not guarantee that the purchaser and only the purchaser would have exclusive rights to use the stock image during the license duration.
A second standard cover letter, came from Getty in Nov. 2013, with a copy of the initial Oct. 2013 Getty letter. A third standard form letter, dated Feb. 2014, came from McCormack, and demanded over $1300. In Mar. 2014, my wife received an email from Lauren Kingston with McCormack, demanding the same amount of over $1300.
Based on what I have read on the extortionletterinfo.com forums, we have not responded to any of the letters or the email.
I have considered the Oscar Michelen's Getty Images Defense Letter Program, which would cost us money we don’t have to spend.
I have a paid membership with Pre-Paid Legal, and was considering the possibility of letting my Pre-Paid Legal attorney fire back a letter to Getty, informing Getty that we had legal representation, and requesting from Getty, evidence of a valid and proper Certificate of Registration issued by the United States Copyright Office of the image in question.
It is anticipated that Getty Images will only respond with a statement similar to the following:
“Since formal legal proceedings have not yet commenced, copyright registrations are irrelevant at this time.”
It is my understanding, that without a proper Certificate of Registration issued by the United States Copyright Office, Getty Images cannot be awarded statutory damages and legal fees. Damages would be limited to “actual damages” which would be fair market value or what the market would pay for the image, not the grossly inflated amount that Getty Images wants to charge for a Rights Managed Licence. Fair market value would likely be something around $49.
A letter from my Pre-Paid Legal attorney would probably temporarily end the letters from Getty and McCormack to her place of business, but I don’t think my local Pre-Paid Legal attorneys want to participate in a 3 year letter writing exchange. My Pre-Paid Legal membership only covers a maximum of 2 attorney letters a year. If we are sued, then we would get representation from Pre-Paid Legal and a certain amount of Pre-Paid Legal attorney trial preparation hours would be covered.
The main reason for this forum post, is that I had an interesting long conversation with a very experienced Mississippi trial and tort attorney about this matter. He was sort of my captive audience for over 4 hours and I think I beat the subject to death with him. He is in his 80's but still has a sharp mind. He has a background as a prosecutor, a defense attorney, and as a trial judge. The following is the gist of what he advised:
Ignore the letters. If even one response is sent back to Getty, it will tell Getty that they have some potential to get money and Getty will redouble their efforts to instill fear with their letters. The act of a response to Getty will be as if we painted a target on our backs.
The Getty letters should go in the same place that is used for advertisements for Viagra, Nigerian money transfer scams, and other junk mail.
If Getty actually sues, only then should we respond.
He agreed that the Getty letter writing campaign is a form of extortion. The reason Getty only attacks the small business owner, is that Getty knows that a certain percentage of victims will succumb to their own fear of being sued, and just roll over and pay Getty to be rid of the persecution. The increasing demand amounts and short response deadlines are a form of psychological warfare. Some victims will pay an inflated amount, fearing that it would be better to pay a high amount now, than let the demand amount increase even higher in the future. This thinking is sort of like picking the lesser of two evils. Getty knows how to exploit this part of human nature.
Of particular note, is that this very experienced trial attorney and judge, explained that the thinking that many people have, which is that they should at least make a good faith attempt to resolve the matter, so that if the case goes to trial, the judge will know that you did not simply ignore Getty, is not correct. The judge will not care if you ignored Getty or responded. The judge will only be interested in the facts. He explained, in legal terms, that if you send a response to Getty, the court will interpret that your act of a response was because you believed that you were obligated to respond. This is akin to an admission of guilt, or at the very least, an admission of responsibility.
The converse is also true. I you do not respond to Getty, it is because you believed that you had no duty to respond. If Getty sues, and if the case goes to trial, and if the judge asks why you did not respond to the Getty letters, then you can tell the judge that you did not believe that you had a duty to respond. You did not respond, because you did not have to.
Getty will not likely sue over such a small amount. There is not enough money in it for them.
I asked this very experienced trial attorney and judge if I should get my Pre-Paid Legal attorney to fire back a letter to Getty, even though it would not cost me anything. He said no.
I asked him if I should use the Getty Images Defense Letter Program. He said he wouldn’t recommend that either, because it would only encourage Getty to engage in an long, drawn out negotiation.
So the bottom line is this:
IGNORE THE LETTERS FROM GETTY AND McCORMACK.
ONLY RESPOND IF YOU ARE SUED.
It is extremely unlikely that Getty will sue over a small amount. It would cost Getty more in attorney fees than they could potentially get out of the victim if Getty prevailed in court. There is more potential monetary return for Getty’s efforts by using fear and intimidation in the form of an unrelenting stream of letters.
So our decision is to continue to ignore the correspondence from Getty and McCormack. In the extremely unlikely event that Getty sues us, then we will respond by using an attorney.
I think that the advice from the experienced judge and trial attorney was sensible, and useful enough to post on this forum.
It is expected that this legal advice may create some controversy. It is not my desire to engage in a debate about the merits or pitfalls of ignoring the Getty letters. My motivation for sharing this information is to solicit the learned opinions of others on this forum, and perhaps create some productive discussion.