Class Action?

[ajcohen]

Hi,

I just registered, so I hope my posting is not premature.
Thanks to Matthew and Oscar for this website.

In January 2011, I received the "letter." I was embarrassed, offered apologies for inadvertent use of the single "unmarked" image, and removed the image from my website.  I figured out the cost of the Getty image to cover the 3 years of inadvertent use, and counter-offered $250 (more than actual cost) to Getty's $875 "settlement" demand.  

I subsequently signed up with Shutterstock to use a similar image-- cost for use of that image was about $8 per year.  Of course, this made me feel foolish for offering the $250.

I received an email back indicating no negotiation would be possible, and now in April, I have just received their follow up threat of litigation implying I could be at risk for even greater "damages" if I do not comply.

FIRST QUESTION:  I have been researching whether this could be a veiled threat that I might be exposed to Getty's "attorney fees" even if a jury awarded just $25. I am thinking that this must be part of their strategy of extortion. Any thoughts?

I live in Seattle literally just blocks away from Getty Images.  I am disturbed that Getty appears to have two businesses. The first business appears to legitimately licensing images for royalty. The second business appears to be a weird type of entrapment/harassment/extortion enterprise. I think this is a business model.   For images such as the one in my situation, I somehow doubt that Getty makes much money from its legitimate business, and hopes to make money in the second business.


SECOND QUESTION: There are obviously thousands, if not tens of thousands, who have been harassed by this extortion campaign. Is it possible to arrange a mass tort harassment lawsuit?  Is it possible to demand that Getty turn over its list of those receiving its "letter" and organize the group into a class action? Is there a way to compel Getty to demonstrate the way it computes "damages"?   My thought is that unless we, as thousands of victims of this extortion, do not fight back as a group, Getty will be able to continue being the 800 pound gorilla in the room. If we can mount a group response, I would think we could be more successful.  Any thoughts?

Alan Cohen, Seattle

[Lettered]

You can find the answers to both questions in the forums.  Class Action has been discussed at length so search for those threads.  Also search for attorney's fees, and I think you'll find that if the image wasn't registered with the copyright office when the infringement began then attorney's fees and statutory damages are not recoverable.   As far as whether your image was registered and qualifies for statutory damages and attorneys fees, I think that is hard to determine for sure.  My feeling is that a very small percentage of Getty Images are registered.  You can search the copyright database, but with registration of compilations it would be difficult, I think, to find a single image if it did exist there.

You might ask yourself if you think it would be worth the risk to Getty to sue over a single unregistered image (if yours is indeed unregistered).  Seems to me they would spend more in their own litigation costs than they would recover in actual damages in most cases.

Be thankful you didn't accidentally use a Masterfile image.  They seem to be very aggressive and register a large percentage (if not all) of their images.

But I'm no lawyer, so do read through the material here.  Everything above is just my layman's take on everything.

[Matthew Chan]

Sort of off-track but Lettered has been on these forums for awhile as well as being current on our latest ongoings through monitoring our posts, interviews, and videos. Although he does the proper disclaimer, he has a good pulse on Oscar's and my position on many of the Demand Letter matters. His replies are a good starting point if Oscar and I are away and don't reply quickly.

Thanks Lettered for contributing your time to help answer questions when we aren't here.

Matthew

[ajcohen]

Thank you Lettered and Matthew. I will review the posts.

Alan

[Oscar Michelen]

The problem with the class action thing is that Getty is not doing anything illegal that I am aware of. They don't make claims for legal fees so the "added cost" could refer to that their settlement demands will go up. I have been contacted by at least three specialists in class action and have debriefed them all at length and sent them material etc over the years and I have never gotten any response back.  I suspect those firms look for the quick hit and this will be a very nuanced type of claim that may not work as a class until someone is actually wronged in some way or Getty is caught engaging in deceptive trade practices.