Hey Everyone,
Our company received a Getty demand image for a photo we posted on our company blog. We use a couple of free stock image sites to source free images for the blog since there's no way to recoup the cost of paid imagery, but apparently one of those sites (I'm not sure which since it's no longer there) was hosting an image that Getty owns, and now we're on the hook for it.
Per the advice on this forum, I immediately removed the image and began an attempt at negotiating. Their offer is $249, and includes $60 in iStockPhoto credits to basically take the sting off. I tried the argument everyone references here about Davis v. The Gap and provided pricing for comparable images and offered them $33. They gave the standard answer about how Rights-Managed images aren't the same as royalty-free images. Obviously, they get this argument all the time, because they also had a stock reply that basically said Davis v. The Gap actually supports their pricing:
I tried to argue that this is extremely faulty logic, but they don't care. I asked for sales records to support their valuation of this specific image, and they said they'll provide it as necessary in court. In a week's time with emails back and forth basically daily, they've refused to budge from their $249 demand. They say, "We stand to protect our photographers from copyright infringement even if it was unintentional." I'm sure their photographers are proud.
I feel like I'm talking to a brick wall, but I also am not certain of whether I have any legal leg to stand on. Obviously our infringement was completely unintentional, and we even specifically sought out free image sources, which I think counts as due diligence. This wasn't something grabbed from a random Google Images search. We pay for imagery when a project requires it, and use free sources otherwise. I'd even license a rights-managed image if the situation called for it. I have no problem paying for images, but I have a problem with the punitive approach being taken here. Heck, I've had images owned by our company show up on competitor's websites, and we just ask them to take them down.
Even so, I know that "unintentional infringement" isn't a defense. The question is, do we have any reasonable argument to lower the offer that they would accept, or should we just pay their demand and move on with life? They've issued a hard deadline, so I only have a couple of days to decide. I'm not sure exactly what they'll do if I don't comply, but the implication is a some type of escalation.
Thanks for your help.
Our company received a Getty demand image for a photo we posted on our company blog. We use a couple of free stock image sites to source free images for the blog since there's no way to recoup the cost of paid imagery, but apparently one of those sites (I'm not sure which since it's no longer there) was hosting an image that Getty owns, and now we're on the hook for it.
Per the advice on this forum, I immediately removed the image and began an attempt at negotiating. Their offer is $249, and includes $60 in iStockPhoto credits to basically take the sting off. I tried the argument everyone references here about Davis v. The Gap and provided pricing for comparable images and offered them $33. They gave the standard answer about how Rights-Managed images aren't the same as royalty-free images. Obviously, they get this argument all the time, because they also had a stock reply that basically said Davis v. The Gap actually supports their pricing:
Quote
Your email quotes On Davis v. The Gap Inc. as support for your offer of the cost of a royalty-free image license. As you correctly point out, the question is not what the owner would have charged but what the fair market value is. What you failed to identify, however, is that the Court goes on in On Davis to acknowledge that, “many copyright owners are represented by agents who have established rates that are regularly paid by licensees. In such cases, establishing the fair market value of the license fee of which the owner was deprived is no more speculative than determining the damages in the case of a stolen cargo of lumber or potatoes”.
The current situation is exactly what the court described. We license millions of images each year at fair market prices. There is no need to speculate as to what the cost of a license for a rights managed image would be. We offer an online price calculator that provides transparent pricing. The offer of settlement in this case is based on established rates for like license terms of images of like quality. In fact, it goes further and it is based on the exact license terms you would have required for the exact image. Your reference to the pricing of royalty-free imagery is not valid in this case.
I tried to argue that this is extremely faulty logic, but they don't care. I asked for sales records to support their valuation of this specific image, and they said they'll provide it as necessary in court. In a week's time with emails back and forth basically daily, they've refused to budge from their $249 demand. They say, "We stand to protect our photographers from copyright infringement even if it was unintentional." I'm sure their photographers are proud.
I feel like I'm talking to a brick wall, but I also am not certain of whether I have any legal leg to stand on. Obviously our infringement was completely unintentional, and we even specifically sought out free image sources, which I think counts as due diligence. This wasn't something grabbed from a random Google Images search. We pay for imagery when a project requires it, and use free sources otherwise. I'd even license a rights-managed image if the situation called for it. I have no problem paying for images, but I have a problem with the punitive approach being taken here. Heck, I've had images owned by our company show up on competitor's websites, and we just ask them to take them down.
Even so, I know that "unintentional infringement" isn't a defense. The question is, do we have any reasonable argument to lower the offer that they would accept, or should we just pay their demand and move on with life? They've issued a hard deadline, so I only have a couple of days to decide. I'm not sure exactly what they'll do if I don't comply, but the implication is a some type of escalation.
Thanks for your help.