Canadian and Dealing with NCS

[Cavitator]

I, like many others here unwittingly used a single image that is allegedly copyrighted by Getty. Upon receipt of the first letter (April 08) I emailed them to say I had removed the image, had no idea it was copyrighted, and that $1200 was a bit high.

They responded in their usual fashion, which I ignored, since they didn't really address my concerns.

NCS called two weeks ago, at which point I told them I was not about to deal with collection agencies since Getty had not given an adequate response to my previous correspondence. He informed me that he wasn't a collections agency, but just looking to get the matter sorted out. We had a lengthy discussion about copyright law and how it applies. I informed him that I had no intention of paying an extortion fee and I may consider settling for a more reasonable amount, as I do feel an (albeit unknown) offence had occurred.

He called back today and I offered him $200, as I had read on a Canadian Getty-watching site (http://excesscopyright.blogspot.com/2008/05/watching-getty-images-watching.html) that this would be minimum statutory damages for unknowingly violating the copyright. His response was that the bot scouting alone would cost that much, but he was obligated to send my offer to Getty for review.

That got me thinking again and I stumbled on this site while gathering some more ammunition. I know realize that he will no doubt tell me this is unacceptable, but the way I see it, they don't have much else to work with. I tried searching for the image's copyright registration at copyright.gov and found no mention of it with respect to Getty, or the original photographer.

Now I'm wondering how to respond when he gets back to me with his imminent rejection of my offer. Any thoughts??

Thanks

[Oscar Michelen]

You are on  the right track.  Tell him when he calls back that because the image is not registered Getty cannot get  costs and legal fees, so its not your problem that Getty chooses to spend more than it is entitled to receive and don't increase your offer at this time.

[Cavitator]

Thanks Oscar,

I'll keep you updated as things move forward. I was expecting his call today, as he emailed me this response from Getty regarding my $200 offer ("they" obviously refers to me):

" Their assumption is incorrect. If this went the distance, so to speak, we'd look to be made right prior to the infringement. We would argue that they would owe us cost of licensing plus our enforcement costs. My best guess would lead me to believe that's more than $200. We would successfully argue their 'we didn't know' or 'we're innocent infringers' defense.
 
Our best number on this is $875. The last offer, now expired, was 40%; hopefully, they note the trend.
 
Thanks,
/enjay "


Once I know more, I'll let you know.