LCS Trunk Archive Follow Up Letter

[LCSScumbags]

Hey all. I received the original boiler plate letter from LCS demanding 675 dollars for use of an image. I responded to them in kind with the Gap case law, multiple similar images from stock sites and their costs and the demand for them to produce their entitlement, proof of registration etc.

Instead of going away they responded with this:

"License Compliance Services Inc. is a company that specializes in assisting copyright holders with the management and protection of their content. Our customers have mandated LCS to handle the matter of your online use of their imagery. We are here to protect the interests, intellectual property and livelihoods of our artists. 
 
The image in question is a copyrighted image, which have a very restrictive licensing model that limits use of an image to the specified size, type of use, placement, and duration of use set forth in the license.  This image license is not transferrable or shareable. That is to say, a specific license is required for the use of the image on any given website. Ultimately, the responsibility to settle this case lies with your company directly.
 
A valid license is required prior to publicly displaying any Rights Managed (RM) image on a website. You do not have a valid license to use the images in question. All it takes for you to infringe is to post a rights managed image publicly without a valid license.
 
If you have proof of use, copy of the license or letter from the artist authorizing the use of the restrictive copyrighted rights managed imagery please forward us a copy for review.
 
While we appreciate the removal of the infringing imagery from your website, the prior unauthorized use of the image is still considered copyright infringement. A valid license is required prior to publicly displaying any Rights Managed (RM) image on a website. Since the copyright infringement has already occurred payment for that unauthorized use is necessary. Unfortunately, being unaware of licensing requirements does not change your liability for the infringing use. Your company does not have a valid license to use the images in question.
You have identified several images that are available for license on a ‘royalty-free’ basis. Leaving aside the quality of the image for a moment, a royalty-free license is non-exclusive (meaning there is no limit to the number of people that can license that image).  Additionally, many royalty-free files found on sites such as the ones that you have identified are non-exclusive to those sites, meaning that many stock photo sites have the same commodity content.
The image that you actually infringed is licensed on a ‘rights managed’ basis.  In addition to being of a higher technical quality, a Trunk Archive rights managed image is made available exclusively through Trunk Archive and its distributors and the license fee is based on size, type of use, and placement.  Unlike royalty-free images, rights managed images are available for license on an exclusive basis, at a premium that reflects the high quality and limited availability
 
Your letter quotes On Davis v. The Gap Inc. as support for your offer of the cost of a royalty-free image license.  As you correctly point out, the question is not what the owner would have charged but what the fair market value is.  What you failed to identify, however, is that the Court goes on in On Davis to acknowledge that, “many copyright owners are represented by agents who have established rates that are regularly paid by licensees. In such cases, establishing the fair market value of the license fee of which the owner was deprived is no more speculative than determining the damages in the case of a stolen cargo of lumber or potatoes”.
 
Trunk Archive license millions of images each year at fair market prices.  The offer of settlement in this case is based on established rates for like license terms of images of like quality. In fact, it goes further and it is based on the exact license terms you would have required for the exact image.  Your reference to the pricing of royalty-free imagery is not valid in this case.
 
Resolution in this matter includes the removal of the imagery and the payment of the settlement fee for the unauthorized use.
 
For information regarding the infringement, please visit: https://settle.lcs.global/2245-7461-8796. Here you will see the imagery in question and where it was captured on your website.
 
To view the Rights Holder Form, Statement of Authorization and Settlement Release Agreement go to “Additional Supporting Documents.”
 
If you have proof of use, copy of the license or letter from the artist authorizing the use of the restrictive copyrighted rights managed imagery please upload any relevant documentation by clicking on “I have a license/authorization to use the imagery. What is the next step?”
 
Also, this link is a video that was created by Getty Images to help explain how copyright infringement can occur and how to avoid it.
 
 
 
Thank You,
Koleta Vee
License Compliance Services, Inc."

Is this a normal response? Is there something particular about my case that is different than others? Any suggestion on responses?

Thanks!

[Greg Troy (KeepFighting)]

This response is more than the usual responses I have seen.  Can you tell me more about the image, how it was used etc.

If you choose to continue to talk with them I would continue with the Davis v Gap that you started.  They have agreed and listed the factors that determine fair market value.  I would ask them to provide the numbers on how they arrived at their fair market value price.  If you hit my car and I tell you it will cost 3000 to fix it you have a right to see the estimate(s)  and how I arrived at the fair market value of the repair.

Tell me more about the image and usage and we can give you more informed opinions.

[LCSScumbags]

Thanks for the reply.

It was an image that I saw on Instagram from a fashion designer in New York. Basically I screen shotted it and posted it to my Instagram which automatically posts to the blog on my website. The image did not have any water marks, copyright info etc. associated with it.

It seems pretty far reaching. The image was immediately deleted once I got their first correspondence.

At this point as far as I'm concerned they didn't respond to any of my demands that they produce documentation of the registration of the copyright, their authorization by the owner of the copyright etc.

Re Gap: They seem to have blown off my argument and be saying that they are allowed to make up their own "reasonable licensing fee"?? In my letter to them I found and used about 10 images from stock websites that were almost totally similar and about half of those were royalty free and the other half ranged from $20-$75 bucks. They seem to have totally ignored this and construed it into something else. They said, "the Court goes on in On Davis to acknowledge that, “many copyright owners are represented by agents who have established rates that are regularly paid by licensees. In such cases, establishing the fair market value of the license fee of which the owner was deprived is no more speculative than determining the damages in the case of a stolen cargo of lumber or potatoes”.
 
Trunk Archive license millions of images each year at fair market prices.  The offer of settlement in this case is based on established rates for like license terms of images of like quality. In fact, it goes further and it is based on the exact license terms you would have required for the exact image.  Your reference to the pricing of royalty-free imagery is not valid in this case."

These people are unbelievable. Any advice on next steps would be great.

[Robert Krausankas (BuddhaPi)]

question.....does the instagram "upload" the image to your blog, or does it generate a link to the image on instagram?.... reason being if it only generates a link, then you possibly did not infringe, as no "copy" was made, except for the screen shotted version which was on instagram and NOT your blog... Instagram certainly has a DMCA agent for such scenarios.. If the image in question was only on instagram Trunk Archive would be required to file a proper DMCA takedown request with instagram.

[Greg Troy (KeepFighting)]

Thank you for your response, can you tell me if the image was just of a fashion design or was it of a model wearing the design?

Robert makes a salient point, you need to find out if your image was uploaded to the blog or just linking back to Instagram. If it is linked that is called "hotlinking"and in the case of Perfect10 v Google the federal court ruled that hotlinking does not constitute infringement is the image does not reside on your server but on the server the image is linked to.

Don't be concerned that they are not responding to your demands to produce the documentation you requested, I can tell you right now that they will not do it. They expect you to provide proof that you have registered the image yet they will refuse to provide proof that they have the right to collect on behalf of the artist for that image.

What they stayed about Davis v Gap is true but you'll also notice that they are still refusing to show you how they arrived at their fair market value. Going back to the car example in my previous post, you have damaged my car I can say that the fair market value to have my car repaired is $5000. That doesn't mean it's true, I can say any number I want, but only when it's taken to two or three reputable auto body shops we find out what the true market value of the repair is. Only if the case were to go to court and there records were subpoenaed would we be able to find out actual sales history, and dollar amount they received for the image and be able to determine true fair market value. I assure you Getty does not want this, and LCS IS Getty. Getty has a history of blowing it big time in court for not having proper documentation, registrations and associated paperwork to legally collect on images. They also don't want to go to court and have one of their images fair market value ruled substantially lower than what they are asking, if this happens that it throws a wrench into the whole works of their settlement demand letter program.

My advice to you at this point would be to tell Getty that you have tried negotiating in good faith to ascertain how they arrived at their fair market value number and that you will no longer have any further communications with them until such a time as they agree to provide you with proof the images properly registered, you have a copy of the signed agreement giving them the legal right to collect on behalf of the artist and supporting documentation as to how they arrived at their fair market value. You will get none of this but in the very highly unlikely event it should go to court you can show you have tried to negotiate in good faith.

After that I would no longer communicate with them in less they provide you with the information you requested. Part of their demand letter program is in my opinion to price the images as high as they can but still make it cost more to even discuss it with a lawyer than what they are asking for. They do this in hopes that people just throw up their hands and pay it to make it go away.

Continue to read the forms and continue to educate yourself and you will see that while the wording of their letters is intimidating you really have very little to worry about.

[DavidVGoliath]

Re Gap: They seem to have blown off my argument and be saying that they are allowed to make up their own "reasonable licensing fee"?? In my letter to them I found and used about 10 images from stock websites that were almost totally similar and about half of those were royalty free and the other half ranged from $20-$75 bucks. They seem to have totally ignored this and construed it into something else. They said, "the Court goes on in On Davis to acknowledge that, “many copyright owners are represented by agents who have established rates that are regularly paid by licensees. In such cases, establishing the fair market value of the license fee of which the owner was deprived is no more speculative than determining the damages in the case of a stolen cargo of lumber or potatoes”.

On this point, they're actually correct. Here's an example that's easy for anyone to grasp.

Your local burger franchise may sell basic burgers for $0.99 or maybe even less. There may be a table service gourmet burger restaurant within a few miles whose least expensive burger on the menu is $12.00.

Both sell burgers, so both items are similar - yet the latter, with regular customers who willingly pay $12.00 or more, has easily established a fair market value for their product.

The same occurs with image licenses. By way of example, I have personally licensed images for companies to use via social media for four-figure sums. Off the top of my head, there was one instance in this past year where the license was €1,351 for a one-month use (the shortest duration I license for). There were similar images available from other outlets for fees lower than my own, but the specific image as desired was only available from my own archives.

Based on the above (and in conjunction with similar licenses), and by the standards applied by the courts, I have established a fair market rate for the use of my works on social media... thus if anyone were to infringe on my images by publishing them to Facebook, Twitter, Instagram etc. without my permission, I can prove my actual losses.

A defendant might want to argue that they could have gotten a similar image for a lower fee elsewhere, but that would be akin to expecting to pay the $0.99 fee for the gourmet burger restaurant's least expensive fayre.

So: if Trunk Archive had ever licensed any of their photographs for a fee near to that in their settlement letter, they could reasonably claim such a fair market value. It's not unreasonable for you to ask for them to produce a copy license (even a redacted one) to verify their fees, but they also don't have to do so - at least, not until they are required to produce such evidence during court proceedings.

[Matthew Chan]

Allow me to possibly simplify things here.  I always give a disclaimer that things can always change, but as far as I know, LCS generally represent smaller clients (other agencies and photographers). As such, I have not heard of any LCS client filing lawsuits on anyone.

For the moment, LCS threats are fairly harmless but they will certainly be persistent and annoying.  I tend to believe that having a good strong (non-bluff) response on file goes a long way to dissuading LCS and others from coming after you incessantly.

I do get emails who report in the results of their cases.  It appears there are some letter recipients who get VERY ANGRY and have very hostile attitudes about being wrongfully pursued for an extortionate amount (especially when people read all the stories on this forum).  And those people have "threatened" the employees of reporting them and their companies to various agencies.

In a sense, they have adopted a "Greg Troy" type of strategy where they "threaten" to retaliate by REPORTING THEM aggressively and being very vocal and outspoken.

I think those kinds of "threats" are a bit iffy for many people as I don't think people can actually carry it out and it might be considered a bluff. However, for some people, it ain't a bluff and it is effective in creating all kinds of headaches for the accused even if it is Getty Images. All one has to do is contact the Washington State Attorney General for the hundreds of complaints they have collected on Getty Images the last 10 years.

Being on the receiving end of a hostile victim who wants to retaliate and feels they have been wronged and being taken advantaged of is not a pleasant experience. And I have heard of some cases where companies have backed off based on the aggravation factor of trying to collect.

Again, this is anecdotal reporting, not actual data. But it is worth considering, if some people are truly pissed off.  Directed non-physical anger definitely has its place. Time has shown being nice and acting like low-hanging fruit is NOT helpful or advantageous.