Claim from Masterfile Canada - Help needed from Oscar - Can pay.

[wilsonStaff]

Hi, four years ago, ive searched thru the Internet for a small photograph to complement my visual for a website i was doing.
I found one, cropped it a bit and placed it on the home page, where it is nowhere near of dominant.

It came up that that picture was (you guess it) copyrighted by Masterfile. And my client received a claim from Masterfile. After some researches, Masterfile was right. This i dont deny.

Some facts:
- the culprit image fills very liitle of my main visual of the main page
- the image does not appear on other pages
- the image was there for 4 years
- the image does have a link with the business my client runs
- my client is a social club, they make no money out of that, only memberships
- the image was quickly removed (within minutes ive received the letter). Removal confirmed by MF.
- the WHOLE website drags about 3000 request per months, mainly from local members looking for their schedule
- i can honestly say it was in innocent infringment
- ive bought some images from MF before
- MF asked to more than several thousands $ initially then reduced to to 1/3 after my acknowledgement of the infraction.

Their policy in case of infringment is either $1500 OR 3 times the cost of the rights, if they would have been paid.

- I counter-offered what Oscar suggests. Offer they refused, sending me back to their $2800
- I am willing to pay but a reasonable price

Questions:
1) What to do next?
2) Any suggestions?
3) What are my chances of being sued?

Thansk for your help.

[Greg Troy (KeepFighting)]

I think you would need to contact Oscar and see if he can help you, I know that there are certain circumstances in which Oscar can help people in Canada and his office can tell you for sure if he can help. You can read about contacting him here.

http://www.extortionletterinfo.com/2012-update-expansion-of-attorney-oscar-michelens-defense-letter-program/

Here are some other comments from Oscar about helping Canadian claims that may be of use to you.

Dear Madhatter:

You are really in the rabbit hole now, welcome! I have drafted letters for some Canadian clients but for their use on their letterhead as I cannot represent you in Canada.  I do not know if you are in jeopardy of being sued because I do not know what getty is doing with its Canadian claims. Canadian copyright law mirrors the UK law in that injunction only for innocent infringement means that you are not responsible for money damages if you infringed innocently but that you cannot ever use the subject images again.

OK, so every so often I get contacted by folks from Canada who want assistance with these trolling claims. There is some confusion as to when I can and cannot get involved, so I thought I would try and clear that up. If the claim is made to a Canadian entity or national from either Masterfile (which is based in Canada) or Getty's Canadian Office or which asserts claims under Canada's Copyright Law, then I CANNOT get involved.

A Canadian lawyer must be the one handling those exclusively Canadian claims.  But if a Canadian entity or national receives a claim from a US based company asserting infringement of US Copyright Law, then I can help them with their demand letter as US Copyright is Federal. So it doesn't matter where the recipient IS, it matters which law the letter asserts.

Obviously, if a lawsuit is filed in Canada, then a Canadian lawyer is needed. Similarly, if  lawsuit is filed outside where I am admitted to practice I would have to retain a local lawyer to move my admission into that state as has happened a number of times around the country.  Hope that clears up this jurisdictional issue.   

Hope this helps you out.  I not sure where you stand at this point since you have admitted to MF that you did it, perhaps some of the others will have suggestions for you but I think you should talk to  Oscar if he can help you.  Please keep us posted on your case.

[wilsonStaff]

Hi Greg, first, thanks for helping. Yeah, i admitted using their image, but not intentionnaly. They have a screen capture to prove it, hard to deny.... This is what you call innocent infringment.

Now, i AM willing to pay MF, i never said the opposite. My main goal is to set a reasonable usage fees for such a small image that has no impact on sales, because:
- the image is small and cropped
- my client isnt selling anything (so money made out of that picture)

This is what i need to know: if i refuse to pay what they ask, and have proofs that i offered significant money but they refused it, what would a judge think if MF sues me?

THanks!

[Robert Krausankas (BuddhaPi)]

 a screen shot is not proof of an infringement, just proof that the image "appeared" on the site..for all they know the image could have been linked from another source..the proof would be in the source code, which would show where the image was actually being served from...moot point I suppose since you clearly already admitted to them that you used the image.. I would think a judge would view you in a favorable light, that you made a good effort to settle, but again there are no guarantees.. you might want to look at the chaga international case, which MF just lost because of the registrations, which were basically deemed useless...if the image you used was by chance one of these images or included with this bulk registration, this would help you greatly..

I don't think Oscar can be much help as you are in Canada..I also doubt MF would file suit over 1 image, but if memory serves they have in the past..

[Greg Troy (KeepFighting)]

It is very hard for me to say what a judge would do as I do not have all the facts nor do I know anything about Canadian law. Based on what I know of US law I would agree with Robert where the court may look favorably upon you since you have been cooperative and have made good faith efforts to settle your case.

I would still contact Oscar's office to see if yours is one of the cases in which he can help/represent you and if not perhaps you can retain him to write a letter for you to be mailed by you on your letterhead.

I will think more about your situation and add to this post a little later.

Hi Greg, first, thanks for helping. Yeah, i admitted using their image, but not intentionnaly. They have a screen capture to prove it, hard to deny.... This is what you call innocent infringment.

Now, i AM willing to pay MF, i never said the opposite. My main goal is to set a reasonable usage fees for such a small image that has no impact on sales, because:
- the image is small (less than 5% of total visual)
- my client isnt selling anything (so money made out of that picture)

This is what i need to know: if i refuse to pay what they ask, and have proofs that i offered significant money (up to 1K$) but they refused it, what would a judge think if MF sues me?

THanks!

[wilsonStaff]

Hi Greg and Robert, the registration identification looks very interesting. What is the procedure to check if registration is unique to Masterfile OR shared with other photo stockers?

Here is what MF says on its web site about that picture:

700-xxxxxxxxxxx
Rights-Managed
Artist: xxxxxxxxxx
People xxxxxx
Model Release: No   
Property Release: No

Thanks!

[Greg Troy (KeepFighting)]

I believe that all of that would be listed in the contract between the artist and MasterFail and you would have to request proof of claim from MasterFail. I'm sure that they will be just like Getty and refuse to provide any proof that they hold exclusive rights and are able to therefore collect damages on behalf of the artist. Again MasterFail recently lost a $6 million case against Chaga because the images in question had been bulk registered at the copyright office instead of registering each image individually as required by copyright law. If you want you can read about the case and the court filings here:

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/oscar-michelen-defends-chaga-against-$6-million-masterfile-lawsuit/

[wilsonStaff]

Ive emailed MF this:


To help me evaluate usage fees, can you provide the following information about picture #xxxxxxxxx:
- is this image bulk copyrighted or single copyrighted
- do you own EXCLUSIVE rights on this particular image or is it shared with other stock agencies?
- do you have documents to support this

lets see what they will answer.

Ive a juggling with the idea of sending out a registered letter (signature requested) to officialize my  offer. Good idea or not?

Thanks!

[Robert Krausankas (BuddhaPi)]

Heres my guess on how they will answer:
1. there is no such thing as "bulk copyrighted" an image can only have 1 copyright...the question should have been, "is this image registered individually or is it part of a compilation.

You should have researched the image in question with the copyright office, as you could have probably determined this yourself with a little effort.

2. If it is a "rights managed" image, other stock agencies will not have it. But this does not mean they have "exclusive rights"that would be in the agreement between them and the artist, unless of coarse they created the image..( again researching the image would have answered this as well)

3. yes they have documents, they may or may ot share them, Masterfile is much more organized than Getty.

I will repeat what I said before...you need to put some effort into this and get educated...there is no "magic answer" short of rolling over and paying them.Have you looked to see what similar images sells for? my guess is none of them sell anywhere near 500.00, why you would offer that is beyond me...

Read the Chaga International case! See that the images in question in that case were part of a compilation, and the registration was deemed flawed, hence kicked to the curb. non valid. they win nothing. if your image is part of that compilation or even another, it nay be invalid, meaning if they sued you they would get squat..

another moot point, as you've already done this even though it is strongly suggested many, many times on the forum..DON'T email them!!! Are they making this easy on you??? why make it easy on them?? make them spend some time printing, stuffing an envelope and licking a stamp. When you ask your questions, pose them in such a way where they actually need to think and research an answer.

Their answers will be short and sweet and at the end they will again demand the full amount, whilst at the same time shooting down your questions...My apologies if I sound harsh, but a little education goes a long way, and when I see people responding off the cuff, without much effort it irks me.. this is a battle, certainly you don't want to cross enemy lines without be armed and dangerous.

Ive emailed MF this:

To help me evaluate usage fees, can you provide the following information about picture #700-xxxxxx:
- is this image bulk copyrighted or single copyrighted
- do you own EXCLUSIVE rights on this particular image or is it shared with other stock agencies?
- do you have documents to support this

lets see what they will answer.

Ive a juggling with the idea of sending out a registered letter (signature requested) to officialize my $500 offer. Good idea or not?

Thanks!

[wilsonStaff]

My apologies if I sound harsh

Hi Robert, no offense taken. MF did send me the documents: with the name of the artist in header, the image is right-managed.

Now, ive read in a previous post (Ref.: How many got sued for just one image) that the Oscar Letter Program can also handle Masterfile case from Canada. Is that true?

[Robert Krausankas (BuddhaPi)]

If you are in the states he can help you..if you are in Canada he cannot as he is not a Canadian Lawyer.

My apologies if I sound harsh

Hi Robert, no offense taken. MF did send me the documents: with the name of the artist in header, the image is right-managed.

Now, ive read in a previous post (Ref.: How many got sued for just one image) that the Oscar Letter Program can also handle Masterfile case from Canada. Is that true?

[Greg Troy (KeepFighting)]

Go back and read reply #1 in this thread, it depends on which copyright law the letter claims it is using, if it is Canadian law he can not if it is US copyright law he can. You will need to contact him to find out for sure if he can help you.

My apologies if I sound harsh

Hi Robert, no offense taken. MF did send me the documents: with the name of the artist in header, the image is right-managed.

Now, ive read in a previous post (Ref.: How many got sued for just one image) that the Oscar Letter Program can also handle Masterfile case from Canada. Is that true?

[wilsonStaff]

Hi guys, i HAVE read the posts/topics and i AM reading all i can, but still, this is not my stuff. I contacted Oscar, described him my case and wait for an answer.

Meanwhile, i used TinEye to see if the pics is somewhere else on the net, and, if TinEye is right, it searches for 2 billion pages to find only one copy of this image: in the MF vault.... So i guess they have (exclusive) rights for this image.

Now, again my intention isnt NOT TO PAY, but to pay a reasonable usage fees.

As MF is asking, is $700/year for an image on a front page of a non-profit website is reasonnable?

What is the typical price for such an image/usage? Their online calculator is so vague that one cant specify EXACTLY usage conditions.

Thanks!

[Robert Krausankas (BuddhaPi)]

compare the image with other "similiar images and see what they sell for...

[wilsonStaff]

I am trying to compare, but their price calculator is very vague: cant add options such as - size of the image, organisation type (non-profit or not), etc.

Other image stockers have more descriptive price calculator and evidently, the price is much much lower.