ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: landmark on September 13, 2014, 12:49:24 PM
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Hi all,
I got an extortion e-mail from Getty recently. I did indeed use the image in question, but I did so intentionally, believing it should qualify as fair use.
I'm a freelance writer and marketing consultant. On my company's blog, I often use examples of writing or marketing found in real life, and I critique these examples to explain whether they are effective, well-written, etc. The post which used the image is about the trend of "clickbait" and "listicles" online. I used the image (and other images) to illustrate my point. For the Getty-owned image, I even say that I found it on the Huffington Post, a popular website.
I wrote to Getty, "Because I use this image in the context of criticism and commentary, its use qualifies as "fair use." When a party's use of copyrighted material qualifies as a fair use, it is not considered an illegal infringement. Therefore, I will not be taking the image down, and I will not be sending you any money."
Getty came back saying they maintain the use is promotional in nature as it's "part of the design element of a website." But they reduced their demands from $800+ to $200. For me to pay this $200 fee, however, I have to do it within a week. Otherwise, they're rescinding the offer.
I don't intend to pay them anything. I used their image as a way to make my point, so I maintain it's fair use. Also, this one-week time frame is an intimidating tactic that I don't want to play into. What's my next move?
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Wow. Do you mind showing us link to the post? If it helps your cause, I'm happy to spread the word about it and send you some traffic and attention.
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I got an extortion e-mail from Getty recently. I did indeed use the image in question, but I did so intentionally, believing it should qualify as fair use.
I too encourage you to share the link. However, if you are uncomfortable doing so, please feel free to send me a PM or email.
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In my observation, Getty's m.o. has been to not let go when they have a fish on the line regardless of what the fish tells them.
I encourage you to shar your link on this board and with Attorney Rothman who is doing his part to attempt t change Getty's behavior.
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I'd be glad to share the link, but the Getty letter also says the "terms of this settlement offer shall be kept confidential..." so I'll hold off for the time being. I'll PM Attorney Rothman for his opinion. If it seems advisable, I'll go ahead and post it.
In the meantime, what can Getty do if I refuse to pay and have a strong legal argument behind me? How can they sue me and have a judge arbitrate when we're not even in the same state?
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Odds are they will NOT sue you. They only sue a small, hand picked fraction of those they threaten to sue. The economics of filing a lawsuit for such a small settlement just don't work in their favor.
Their confidentiality statements are designed to keep them in business. They want to keep their trolling activities quiet. We want to make their trolling activities public, so the ensuing outrage might get lawmakers to put a stop to their activity.
Get educated. Read what you can in the forum. Share what you know when you are comfortable.
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17 USC 107, the fair use statute, says:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
As to factor 1, the purpose and character of the use is for criticism and in this regard I would consider what you have done to be transformative, and so this favors you.
The question of fair use does not turn simply on whether the photographs themselves were unaltered. Rather, as the relevant jurisprudence makes clear, the salient inquiry is whether the use of the photos, in the specific context used, was transformative. See Perfect 10, Inc., 508 F.3d at 1164 ("a search engine puts images 'in a different context' so that they are 'transformed into a new creation.'") (emphasis added). In that regard, the Ninth Circuit has consistently held that "making an exact copy of a work may be transformative so long as the copy serves a different function than the original work[.]" Id. (image originally used for entertainment or aesthetic purposes was transformed where defendant used the same image to facilitate use of an internet browser to locate information on the web); Kelly v. Arriba Soft Corp., 336 F.3d 811, 816 (9th Cir. 2003) [14] ("exact replication" of protected images was fair use where used in a different context from the original); Mattel, 353 F.3d at 802 (photographs of Barbie dolls "in various absurd and often sexualized positions" parodied "Barbie's influence on gender roles and the position of women in society" and hence was transformative); see also Nunez v. Caribbean Intern. News Corp., 235 F.3d 18, 22 (1st Cir. 2000) (holding that use of unaltered pictures in conjunction with editorial commentary gave them "new meaning" sufficient to transform the works into a "newsworthy" use); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 115 n.3 (2d Cir. 1998) (application of the fair use doctrine is particularly apropos where the use of the work disparages the original).
See Sedgwick Claims Management Services, Inc. v. Delsman, No. C 09-1468 SBA, July 17, 2009 (http://www.gesupplydiscrimination.com/weblog/casamento_you_lose.pdf) See also Katz v Chelvaldina (http://www.trademarkandcopyrightlawblog.com/wp-content/uploads/sites/9/2014/07/kat211.pdf)
Factor 2 is not really relevant. Factor 3 favors Getty. Factor 4 favors you.
Score: You 2, Getty 1.
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I'd like to add that Joel Rothman (his law firm actually) is an active plaintiff in their case against Getty Images. I believe Joel is actively seeking relevant information in support of his case and accusations against Getty. (I happen to be in alignment with Joel that Getty is reckless with their operation. Getty uses amateur $15/hour clerks who take many of the bullets for their cowardly internal lawyers who make around $100K-$150K/year in their cushy little gig and stay silent and in the background.)
If Joel is openly asking for information, I would be inclined to support his efforts and email him what you have.
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""terms of this settlement offer shall be kept confidential..."
who the fuck is getty to tell you this!!! this only applies if you agree to it in writing...ntuarally when getty sees this, they will remove the 200.00 offer because Getty Images and the Likes of McCormack Law are douchebags.
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The fact that they abruptly dropped the amount they were looking for indicates they don't have a leg to stand on.
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Thanks for the legalese and the support. So I still have some questions:
- How should I respond? I believe that I should send them the text that Joel Rothman sent me and reiterate my position that I'm not paying them and not taking the image down. Do you agree this the best course of action?
- How should I expect Getty to react?
- What should I do about their stipulation that things should remain confidential? I suppose it doesn't matter because I'm not agreeing to their terms, but do I need to be careful with this aspect of dealing with them?
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landmark,
The way you should respond always depends on your judgement. It involves balancing risks and deciding what you value. So, for example: you could:
1) Not answer and ignore them.
2) Offer then $200 but stipulate that you aren't willing to agree to a gag order-- rather you plan to discuss the situation widely.
3) You can fork over the $200 and agree to the gag order.
4) You can offer some other amount.
5) You can re-iterate your fair use argument and tell them you are not paying.
6) You can re-iterate your fair use argument and tell them that admitting no guilt, to get this behind you, you are willing to give them $200 (or whatever.) Decide whether you are willing to go with the gag order.
7) You can hire an attorney and have the attorney speak to getty images.
To the extent that you refuse to pay the may sue. It's not likely-- they generally don't. To the extent that you fork over money, they won't sue.
If I were you and I thought my use was clearly under fair use, I'd do (5). If I thought my fair use argument was poor... I wouldn't explain it to them, but I might just fork over the $200-- possibly even accepting the gag order. (I'd be grumpy about that though.)
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I suggest you treat them like jungle animals. If you show fear, they will not relent. If you show that you are willing to inflict harm on them, they may back off and chase easier prey.
But, above all, what Lucia says is true. You need conviction in whatever approach you choose to take.
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I should add an observation. Getty Images dropped the demand to an amount exactly equal to Oscar's Letter writing program. My guess is they know that lots of people pay Oscar and have dropped this demand to that level precisely to give someone a choice between putting $200 in GI's pockets (which would settle it once and for all) vs. putting it into Oscar's on a case GI knows they will never pursue. That's my guess though.
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Interesting observation! You may be on to something there Lucia.
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- How should I respond? I believe that I should send them the text that Joel Rothman sent me and reiterate my position that I'm not paying them and not taking the image down. Do you agree this the best course of action?
Not only should you reiterate your position, you should make it clear that you have spoken to an attorney that supports your position and that further contact by Getty will force you to bill them for the time you spend dealing with this issue. You charge $### and hour and your attorney charges $### and both of you bill in half hour increments.
- How should I expect Getty to react?
Half the time they slink into the shadows and half the time they continue to pester a bit. A big part of it DOES seem to be how clear you are about your willingness to fight.
- What should I do about their stipulation that things should remain confidential? I suppose it doesn't matter because I'm not agreeing to their terms, but do I need to be careful with this aspect of dealing with them?
Personally I think you should make it clear that you do not agree to keep anything confidential and that you intend to report on what they do as fully and as publicly as possible.
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If you have resolves not to agree to a gag order, you could publicize the offers now. They can't unilatirally gag you. I don't know any theory under which they can harm you for discussing this. The only thing it does is potentially affect what they will agree to going forward and maybe your publicizing would make a difference. You can never know what "would have happened if". You can only eventually know what does happen. I tend to think it's better to discuss their offers in public.
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It's the original poster here. I've decided to fully reject Getty's offer. Here's the link to the blog post in which I used the image in case anyone is interested.
http://www.capandwing.com/blog/manufactured-urgency
I'll most likely post my response to Getty soon.
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In my opinion, those don't look like "design elements". Also, it appears you took screenshots of the images with captions to show how messaging is used as "click bait". Of course, a court will go through the 4 factors of fair use. But I always like to think of the "I know fair use when I see it test" on top of that. This sooooo looks like fair use to me! (That said: I'm not a lawyer!)
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What is a "design element" in this case??
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What is a "design element" in this case??
header, footer with logo, and perhaps the sidebar..clearly they are reaching.
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I think "design elements" are elements that are either clearly structural or decorative as opposed to being inserted as part of the discussion or commentary. In this case, the images are an integral part of the discussion about "clickbait".
In contrast, in the SLATE blog post example I linked above, SLATE includes a very large topical but decorative image at the top of every blog post. These big images at Slate are generally not discussed and merely set a "tone". That is both structural and more 'decorative'. As such, I interpret the SLATE images as "design elements", but the "clickbait examples" as "not design elements".
What would a judge decide: One never knows. But those don't look like 'design elements' to me. And bear in mind: I wasn't willing to buy the argument that images can't be merely because they are in a blog post. So... I try to avoid the knee-jerk reaction that "If Getty Images says X it must be wrong." or "If a person who got a Getty Images letter advances an argument it must be right". I have standards. I think my standard is correct. And to me:those don't look like design elements. ( Note though I am not a lawyer.)
Also: 'not being design' element is not sufficient to win the fair use case. But (though I am not a lawyer) that looks like fair use to me. They aren't having any impact on Getty's ability to sell. The context is different. There is a good reason to use the amount used -- and in fact, captions were included in the screenshots. Why? Without those captions, the amount used makes no sense. There's a good reason for "why those images": Because -- with the captions added-- those are examples of clickbait as they appear 'in the wild'. They aren't just "the images".
Heck, because the captions are included in the screenshot, no one else is going to 'hotlink' those from the blog to merely decorate their site-- and that goes to the market substitution argument.
And so on. Obviously, if Getty Images sues, someone is going to need to get a lawyer to defend and write up the defense. But those look like fair use to me.
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The "design element of a website" argument seems absurd. It's just a convoluted way of saying that the image is on the website to begin wth. By necessity, any image that's on a website at all becomes part of the "design element of [the] website."
Would there be a way to put an image on a website (fair use, proprietary, or whatever) without it becoming part of the website's "design element?" No.
Likewise, if you were writing a book, would it be possible to include a copyrighted passage from another book for analysis without it becoming part of the text of your book? No.
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I don't think all images on web sites are "design elements". I think some are "content". But perhaps Getty Images makes the "design element" claim for all images. But we don't know whether they do so. Presumably if they went to court, they would have to provide their definition for "design element". If it turns out to be "any and every images", a judge might view the diagnosis of "design element" to be rather meaningless as it means nothing more than "it's an image".
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I had the chance to do a little research into this "design element of a website" phrase. I couldn't find any legal definition.
That being said, this phrase comes up in boilerplate legalese for image licensing companies. Google shows that this phrase appears in many, many companies' licensing terms, and I'd assume it could be in Getty's as well. Here's the relevant excerpt:
A. User's Rights to Materials from [company]. You agree to access, acquire, and use our Materials as follows:
[...]
3. You may access, acquire, and use the materials downloaded from [company] subject to these Terms and Conditions in the following manner:
[...]
f. As part of a design element of a website, video, film, television broadcast, CD-Rom cover, or video game. However, you may not, under any circumstances use the materials from our website in a Website template or any template or design sold individually or as part of an archive or catalog collection, or an automated shopping system, under any circumstances. You MAY however use our photos in client websites that are NOT distributed through an archive or automatic system.
So this script seems to use the "design element" phrase to distinguish from website templates. I'd guess the standard license for an image allows one to use the image in "the design element of the website" (although it's still unclear what that is exactly) and not the template. I'd also assume that companies have a different license, perhaps at a higher fee, if one wanted to use an image in a website template.
Nevertheless, this phrase has nothing do with fair use, it seems. The fair use exception should remain intact (as long the manner in which the image is used indeed meets the criteria of fair use) no matter if the image appears in the website's design elements, its template, or wherever else.
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landmark,
However, you may not, under any circumstances use the materials from our website in a Website template or any template or design sold individually or as part of an archive or catalog collection, or an automated shopping system, under any circumstances.
The restriction is you can't use it to create a template offered for sale. That's not a distinction between "design element" and template, it's the difference between people making a bunch of templates with the images and then selling the template. Not this is a totally reasonable provision. Otherwise, what happens is:
* "Web designer" licenses image. So "Web designer" can display it.
* Web designer makes slick template using the image as a design element. Customer A buys template.
* Customer A thinks he can display the image because the web designer sold the template to him. The template he displays uses the images as a "design element", not 'content'.
* Customer A launches his blog or web site and displays the image. At this point, Customer A is violating copyright. (Unknowingly, but still violating.) Also: the images he is using are 'design content'.
* The copyright holder finds the image on Customer A's site, sends nastygram to customer A for displaying.
Note: Copyright holder hasn't found 'web designer' yet. Also, unless the license prohibits the web designer from selling the template to customer A, the web designer hasn't violated copyright in the sequence above. So, the copyright holder may have no case against the web designer. (Custome A may have a claim under tort law. But that's a different matter.)
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Nevertheless, this phrase has nothing do with fair use, it seems. The fair use exception should remain intact (as long the manner in which the image is used indeed meets the criteria of fair use) no matter if the image appears in the website's design elements, its template, or wherever else.
I doubt that. I think it would be very difficult to make a 'fair use' claim for an untransformed image used as the header images in a template. There could be some exceptions based on the specific image and what's been done to it. But, using it in a template is a major market for images and it's very rarely any sort of "comment" or "criticism". (Not that it absolutely couldn't be-- but it's pretty rare).
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I agree that it makes sense for a licensing company to restrict a typical license so that an image can't be used in a template for sale.
I also agree that it would be harder to imagine a fair-use exception for a template. But one could be possible, I suppose. Maybe if a doctored logo of a company was built into a template of a site that criticized that company's labor practices, environmental record, or whatever.
But my point remains. The fair-use exception isn't nullified just because the copyrighted image appears in the website's "design elements."
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Lucia you are right that Getty seems to be lowering its damage demands to counter the amount of our letter program we have seen a lot of that this year especially. Hey that only means that ELI's efforts are helping bring down their demands to more reasonable levels. We should al take pride in that. I disagree with you and my friend Joel Rothman that this is a slam dunk "fair use." Generally speaking the comment and criticism must be about the work of art NOT using the work of art to supplement or enhance the commentary or criticism. So if the comment or criticism had been about the image itself then I think its 100% a fair use defense; here the odds are in your favor still but it could go the other way if the court feels that the use was not sufficiently connected to the comment or criticism or sufficiently transformative. Keep in mind BTW - when you argue Fair Use you are raising an affirmative defense to infringement which YOU have to prove. So its essentially acknowledging that you used the image without permission but you have a legal excuse why you can do so.