ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: edward1234 on September 20, 2012, 05:44:13 PM
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Hello All,
I have read through many posts on the forum and pages on this site and want to first of all thank all of you for taking the time to share information and resources. Thanks!
My situation in brief: found a free template online and used it as a place holder for a domain name with literally no traffic. The only people who have ever seen the site are myself and Getty's robot. The intention was to put up a real website later.
Received a letter demanding a $1000 for the presence of one image in this template.
The image is in likely hundreds if not thousands of sites all over the net that use this same template. I have found many examples of the same template everywhere by just Googling the filler text that came with the template.
I compared the image in the template to the same image on Getty's website. The template takes the image and cuts it down by quite a bit then blends it with 2 other images to form a header image. Does this get any protection since it is a form of re-hasing or re-mixing of the original image (the same way remixed songs I believe are protected)?
I know even though it is a free template that won't help me much, but hopefully that fact that the site received zero traffic will.
Thank you so much for any insight!
Sincerely,
Eddie
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You might have a "de minimis" defense. I doubt that would stop Getty from hounding you, but I also doubt they would ever sue you for the situation you describe.
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I want to welcome you to the forums Eddie, you should continue reading as there is a wealth of information contained here.
If I understand you correctly your site was never actually live and was just packed with a placeholder image. If this is the case I would let Getty know this and tell them that according to statements made by their CEO (is he still the CEO since they have been sold?) Jonathan Klein that Getty welcomes people to use their images up to the point that money is being made. Let them know that this was provided in a template but regardless it was a place holder and the site is not live nor is any money being meage on it so they can pound sand.
Here is a link to the interview in question:
http://techcrunch.com/2012/03/22/for-pinterest-revenue-will-turn-copyright-questions-into-problems/
Hope this help, keep reading and again welcome to the forum.
You may also want to consider getting the support call with Matthew for 50.00 if you don’t feel like doing all the reading as he can get you up to speed very quickly.
Hello All,
I have read through many posts on the forum and pages on this site and want to first of all thank all of you for taking the time to share information and resources. Thanks!
My situation in brief: found a free template online and used it as a place holder for a domain name with literally no traffic. The only people who have ever seen the site are myself and Getty's robot. The intention was to put up a real website later.
Received a letter demanding a $1000 for the presence of one image in this template.
The image is in likely hundreds if not thousands of sites all over the net that use this same template. I have found many examples of the same template everywhere by just Googling the filler text that came with the template.
I compared the image in the template to the same image on Getty's website. The template takes the image and cuts it down by quite a bit then blends it with 2 other images to form a header image. Does this get any protection since it is a form of re-hasing or re-mixing of the original image (the same way remixed songs I believe are protected)?
I know even though it is a free template that won't help me much, but hopefully that fact that the site received zero traffic will.
Thank you so much for any insight!
Sincerely,
Eddie
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If Getty found the alleged infringement, the site must have been "live", I think.
Regardless, I agree that nothing much will ever come of this.
The alleged infringement is part of a montage of other images, and the site made no money.
It would be difficult to prove any damages.
Getty will send letters to OP for the usual period, then it will simply fade away.
S.G.
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They'd never be able to prove intentional infringement because you could never have found out that part of an image is copyrighted unless you knew it was created from several images in the first place.
They will say that the image shouldn't have been used without a valid licence but the truth is you didn't use their image, just an image that contained part of an image they claim to have exclusive rights to.
Your case is strengthened if the terms of the template you used stated you could use it freely or at least as a place holder because that is permission to use the image within the template.
This is a non-starter really. Tell them the matter is closed.
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S.G. raises a good point about the "live" status of the site. The definition of when a site is actually "published" is very ambiguous. The trolls like the loosest standard possible: if they can find it with their targeted searching software and you didn't block their bot, it was "published".
A more reasonable standard would be when the site is submitted to search engines or announced to the public in any other way, such as social networks. The whole issue of a site in development being an infringement as soon as a file is uploaded is questionable to me, especially in the light of the statements made by Getty's CEO about creativity and flexibility.
Couch_Potato, I believe if even a part of the image in question was involved there's still liability. A derivative work is still an infringement if the original work is recognizable. Apparently PicScout recognized the portion that Getty claims they need to get paid for.
The fact that the copyright user was bamboozled by an invalid license helps a defense of innocent infringement or de minimis infringement, but that would come up in court and Getty seems to ignore any such reasoning.
Other proof that may help the innocent infringement defense would be the argument that the site was not really public — and that proof would lie in your server logs. For the most part you should find that the visits to the "published" site were from crawlers like PicScout and the search engine crawlers, and of course the web developers working on it.
A site under construction has virtually no chance to score any kind of rankings for any meaningful search, so finding such a site is an exercise in pure randomness for a mere mortal. Your server logs will prove how few human eyeballs the site actually caught.
So is it really "published" because the public could access it — even though the possibility is ridiculously remote?
I guess you would find out in discovery. They just want to scare you into paying for something you didn't take and didn't use anyway. I wouldn't pay them squat.
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I'm leery of claiming a site isn't published if it is on a public server. Robots.txt is more of a request, not an actual security setting. Claiming it is not published until it is announced on social media channels or using Google's webmaster tools would get you shredded in court. I can hear it now: "So you are saying prior to Facebook and Google no web sites were ever published?" Boom. You're done.
One could try and dig back into server logs, but those are not always present.
I'm not saying that you shouldn't use the lack of announcement as a defense. In fact when someone replies to these demand letters I think they should look at previous victim's court filings. In these, they list out the many reasons that the stock company's claim holds no water. I think it would be wise for anyone to generate a list of reasons they are not in violation. The more, the merrier.
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Jerry, the point is not letting the trolls define the term "published" by default. There isn't really a standard, and it would be good to have a better standard than "it could be stumbled upon against colossal odds, and our bot could find it."
Here's an analogy: if you get a book printed and your cover is infringing a copyright, and you realize this on press check before the book gets out of the print shop, did you really wrong the copyright owner? Maybe a few people on the print floor saw the cover, as did the prepress people and account executives. That doesn't mean the book was published.
Some attention must be called to the whole logic of what their claim is — that they were wronged by someone using their image publicly without a license. If very few people saw the image and it was mostly developers who dropped the project, what's the harm in that?
Unfortunately, most hosting outfits don't hold your access logs more than a few months. It may be part of the trolling strategy to make the screen capture and wait a few months for their tracks to disappear before sending their annoyance letters. For many of the victims it's too late to try to get this kind of proof.
I agree that one should use every defense available even if it may seem like a stretch, especially those that have proven successful in court. The trolls won't listen anyway. The defense scenarios would be useful only if they decide to take one to court, and that has not proven to be very likely.
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Bottom line, if the files are uploaded to a web server, and not password protected, they would be considered "published", if you don't want the public to see them or spiders/bots to find them don't upload them or protect them.....it's not rocket science we're talking about. I've been in business 12 years and have ALWAYS password protected projects under development, of just kept them on my local workstation..
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Having the right to an image includes the right to make derivative use of the image. So cutting it up and putting it into a banner would not be a defense. The change would have to be "transformative" under the law to allow you to make an unlicensed use of someone else IP. Contrary to the popular urban myth there is no 10% rule (that is, that if you change a work of art by 10% it s not infringement). But read on through the forums to see that single image cases have been not pursued in court by Getty
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SG and Moe, I understand with you are saying and agree with your definition of a "live" site. A good example of what I was saying was shortly after I purchased my domain name of www.yeahwedothat.biz I had placed a park page at that address stating stay tuned for our website to go to live shortly. There were no links or any way to navigate off of that page. Behind the scenes I was constructing the website and while it could've been accessed by bots the website was not active nor was I conducting any business or making any money on the site. The way that I read the OP's initial message it sounded like he had something similar and that the template he was using had an image in it picked up by Pic-Scout. What I was telling the OP was that by what Jonathan Klein had said in the interview he and Getty were fine with an image being used this way upto the point that the site is being used to make money and that this could be one of the defenses he can use should he choose to reply to Getty's letter.
I just enjoy taking any opportunity I can to point out when Getty speaks out of both sides of their mouth, in the interview Jonathan Klein says it's okay and in the letter they say it's not. It's just like the current Rock Photo lawsuit against Getty where Getty claims that if they are using any of rock photos images it was unintentional an innocent infringement and therefore they should not have to pay, yet when anyone that receives one of their extortion demand letters says the same thing Getty says that it doesn't matter you are guilty and must pay.
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Very interesting discussion.
Is there really a point in telling the customer service rep on the phone about the CEO's comments? Looks like the only power the person on the phone has is to offer the "discount" on the settlement (they probably have guidelines on what percentage discount to make and that is all they can do).
Also, whats the benefit of responding in writing then if there is no upside to them to pursue this case?
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I do not recommend talking to them on the phone as it will serve no purpose and my personal preference is to do it the old-fashioned way in writing and through the mail is that way I have copies of all correspondence and proof of everything that was said should it be needed.
I recommend continued reading of the forms and you may wish to consider posting a copy of your letter before you send and ask for comment.
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The moment that content is published (appears) on the Internet, it is "live". No questions.
Whether or not anyone can find the content doesn't matter.
I have the feeling that PicScout plugs in raw DNS numbers to access sites. It doesn't come from "google", for example.
I saw Klein's vid a while back. I have no intention of defending Getty.
But, did he specifically say that people could make live sites with Getty images that they haven't licensed?
Additionally, while this is certainly embarassing for Getty, and they're definitely enticing people to take chances with their content, anything that he says offhand in an interview is not a "contract".
It is embarrassing, for Getty... I'll give you that.
Also, I'm agreement that you should not talk on the phone with Getty.
They've dealt with thousands of people on the phone, and they have legal counsel on staff.
That's a couple things to keep in mind.
S.G.
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My point wasn't to do with making derivative works but more to do with Getty stance that it's your responsibility to ensure an image you use is licensed.
If somebody takes several images and uses them to make a completely new image and tells you it is ok to use that image, what reasonable steps could you take to ensure the image was not copyrighted to someone else considering that potentially only a very small part of the image is actually copyrighted?
If Getty actually believe there are reasonable steps you could take then what are they because, according to their very own letters, they have to spend a large amount of resources detecting copyright and that is passed onto 'infringers' in the settlement amounts they charge.
I'm not arguing whether it is actually copyright infringement, just the damages Getty feel they are owed in this particular instance. While I wouldn't pay them anyway, I definitely would not pay them for this.
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My understanding is that the mere act of making a copy of a protected work is infringement. So, I don't really think what stage the website is in is relevant; if the protected work appears there, then it is infringement (assuming it isnt fair use). In other words, I don't think it matters if the website is considered published or not by anyone's definition.
Still, like most others here, I don't think there's a need to "sweat" a single image case like this one.
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I think that Lettered nailed it.
We've discussed such things in the past many times.
I can get all sorts of "free" images to use. But, I buy royalty free stock images.
Why? To avoid claims such as the one that the original poster (OP) received. I have a license and receipt when I buy.
In any case, if it's offered up for "free" on the web, Getty couldn't get much more than the price of an innocent infringement ($200).
...and they'd have to spend many thousands of dollars in court costs to get that. Getty's content isn't registered, so they couldn't get those court costs.
Plus they never sue over a single image... a single image that's a "mash-up" of other images.
I hope that clears everything up.
S.G.
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I don't think anyone here is saying an infringement did not happen. The stage at which the website had been developed could be relevant to argue an innocent infringement defense. Not that much harm, not that much foul, not that much should be awarded.
Which is exactly why it's not likely Getty will go to court over this matter. There's little upside in it for them.
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I disagree that a site in a state of test/construction meets the test of innocent infringement in terms of an image placed on it.
The state of completion of a website should not cause the publisher to determine that any given image is not covered by copyright.
I think that "innocent infringment" is being confused with "de minimis damages".
The alleged copyright holder couldn't prove much value in damages because the site didn't make sales.
S.G.
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SG - just want to clear up that in a quirk of the law the "innocent infringement" reduction to $200 applies only to statutory damages not actual damages. While courts in assessing actual damages often take into account how and when the work was infringed, there is nothing in the Act that reduces actual damages based on the innocence of the infringement. With Getty claims the best argument remains "de minimus" infringement and that actual damages means what price the marketplace usually places on this type of image ($1-$50) not Getty's exorbitant pricing scheme.
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I think the below quote sums it up exactly.
Oscar, would you be so kind as to provide further information on this automatic $200 damage amount? How does that work?
Thanks so much!
I disagree that a site in a state of test/construction meets the test of innocent infringement in terms of an image placed on it.
The state of completion of a website should not cause the publisher to determine that any given image is not covered by copyright.
I think that "innocent infringment" is being confused with "de minimis damages".
The alleged copyright holder couldn't prove much value in damages because the site didn't make sales.
S.G.
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Thanks to Oscar for his input, and the reminder!!
"Actual damages" refer to the actual retail price of the image; what Getty would license the image for.
The price would reflect where, when, and how long the image was used, as if you actually licensed it from Getty.
It's important to remember that while Getty makes large demands in its letters, the actual pricing is usually much less than this.
"Statutory damages" refer to costs above and beyond the actual price of the image.
This is of major concern, as it may include legal fees incurred by the plaintiff, loss of profits, and other costs.
These damages can really add up, as anyone who's needed the services of a lawyer can attest to.
In the US, one may only seek statutory damages if the image has been properly registered with the Copyright Office. Otherwise, the plaintiff may only seek actual damages.
In Canada, one may seek either statutory damages, or actual damages. The choice is not dependent on registration with the Canadian Copyright Office, although that would help the plaintiff's case greatly.
It's easy to see why Getty doesn't give any information about the status of the content that it sells.
They wish to give the impression that all of their images are registered with the copyright office, in order to make the spectre of statutory damages loom over the alleged infringer.
Also, a proper registration is an essential part of proving a case in the event of a dispute.
What Oscar is saying is that if the defendant successfully pleads "innocent infringement", the penalty could be as low as $200 in the US.
But, if Getty felt that the alleged infringer could do this, their strategy may be to sue for actual damages if those amounted to an excess of $200.
In US law, "innocent infringement" is defined as "In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."
http://www.copyright.gov/title17/92chap5.html#504
It's up to the court to decide the validity of the defendant's defense of "innocent infringement". But, such things would likely include situations such yours wherein something was offered for free use, and you acted in good faith and belief.
Having said all that, the major stock image companies have been largely unsuccessful in their court endeavors.
All this talk of court and lawsuits isn't intended to scare anyone. Lawsuits are quite rare.
Getty's never sued over a small number of images. Masterfile has in the past, but they seem to be on hiatus for now.
S.G.
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Masterfile has in the past, but they seem to be on hiatus for now.
S.G.
That's putting it mildly! Masterfile aka "MasterFail" has certainly lived up to their new moniker, Thanx to Oscar for a major beatdown..
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Yeah... they're not even filing suit as a scare tactic anymore.
Must have really thrown off their game.
(http://04.images.fireden.net/wp-content/uploads/2012/07/SC2-General-korean81.jpeg)
S.G.
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I can't find the "bow down to you" smiley put please imagine it here :D
Thanks to Oscar for his input, and the reminder!!
"Actual damages" refer to the actual retail price of the image; what Getty would license the image for.
The price would reflect where, when, and how long the image was used, as if you actually licensed it from Getty.
It's important to remember that while Getty makes large demands in its letters, the actual pricing is usually much less than this.
"Statutory damages" refer to costs above and beyond the actual price of the image.
This is of major concern, as it may include legal fees incurred by the plaintiff, loss of profits, and other costs.
These damages can really add up, as anyone who's needed the services of a lawyer can attest to.
In the US, one may only seek statutory damages if the image has been properly registered with the Copyright Office. Otherwise, the plaintiff may only seek actual damages.
In Canada, one may seek either statutory damages, or actual damages. The choice is not dependent on registration with the Canadian Copyright Office, although that would help the plaintiff's case greatly.
It's easy to see why Getty doesn't give any information about the status of the content that it sells.
They wish to give the impression that all of their images are registered with the copyright office, in order to make the spectre of statutory damages loom over the alleged infringer.
Also, a proper registration is an essential part of proving a case in the event of a dispute.
What Oscar is saying is that if the defendant successfully pleads "innocent infringement", the penalty could be as low as $200 in the US.
But, if Getty felt that the alleged infringer could do this, their strategy may be to sue for actual damages if those amounted to an excess of $200.
In US law, "innocent infringement" is defined as "In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200."
http://www.copyright.gov/title17/92chap5.html#504
It's up to the court to decide the validity of the defendant's defense of "innocent infringement". But, such things would likely include situations such yours wherein something was offered for free use, and you acted in good faith and belief.
Having said all that, the major stock image companies have been largely unsuccessful in their court endeavors.
All this talk of court and lawsuits isn't intended to scare anyone. Lawsuits are quite rare.
Getty's never sued over a small number of images. Masterfile has in the past, but they seem to be on hiatus for now.
S.G.