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Author Topic: Getty Demand Letter - Rights-Managed Image  (Read 5477 times)

pyro2xs

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Getty Demand Letter - Rights-Managed Image
« on: November 28, 2016, 11:21:19 AM »
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:

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.

stinger

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Re: Getty Demand Letter - Rights-Managed Image
« Reply #1 on: November 28, 2016, 02:45:54 PM »
How do you even know that the image is theirs and that they hold the rights necessary to pursue copyright infringement?  Because they said so?

Read as much as you can in these forums to become acquainted with their "game".  Don't let their phony deadlines manipulate you into doing something you will later regret.

Ask yourself this.  Is it worth their filing a lawsuit over 1 image?  What will it cost them to do so?  Chances are, even if they did (and that's a long shot), the judge might award a minimum judgement meaning that it would cost them more to file than they might gain.

There are lots of stories in this forum of those who fought and won.  They wanted mid 5 figures from my firm.  They got nada.  The lawyer they put in charge of my case got the opportunity to have another attorney defend her before the Washington State Bar Association.  I don't know what that might have cost her.  Did I tell you they got nada from me.

There are lots of people who will settle to make this go away.  $249 might be worth doing that for you.  On the other hand, it might brand you as an easy mark, and they might find other infringements to attribute to you.

Read the forums.  Digest it.  Read some more.  Don't let them bully you into something you might regret later.

pyro2xs

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Re: Getty Demand Letter - Rights-Managed Image
« Reply #2 on: November 28, 2016, 06:03:32 PM »
The image is part of their online catalog, and that's the basis of their claim. They won't provide further information unless I decide to go to court. That's basically how they seem to handle any request for documentation.

If it's possible to take them to court and win, what's the legal defense? From what I can tell from reading about this issue, it seems like the law in on their side.

Or is the best strategy to try to just be forgotten and hope they don't pursue it? What's the best way to do that?

Robert Krausankas (BuddhaPi)

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Re: Getty Demand Letter - Rights-Managed Image
« Reply #3 on: November 28, 2016, 06:37:57 PM »
And this is the issue with "FREE image sites", there is no telling where those images came from, unless they are images in the "public domain"...If you have "proof" you obtained the image from a site purporting to offer "free", a judge may find you guilty of deminimus infringement...however they aren't going to sue over a single image, if they don't have the rights to do so, and if they believe your version of the story..it would be a losing proposition for them.
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

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stinger

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Re: Getty Demand Letter - Rights-Managed Image
« Reply #4 on: November 29, 2016, 09:22:21 AM »
Quote
The image is part of their online catalog, and that's the basis of their claim. They won't provide further information unless I decide to go to court. That's basically how they seem to handle any request for documentation.

If I came out of nowhere and sent you a letter claiming to own the house you live in, and an exorbitant bill for past rent, maintenance and operating expenses, would you just pay it?  If you asked for proof of my ownership and I said I would provide that in court, would you just pay it?  If the answer to either of those questions is yes, I will need a little more information including your address and how long you have lived at your current domacile.

It's odd how people throw common sense out the window when they are being threatened with the legal system over matters the threateners seem to know more about than the threatened.

$249 may not be a lot of money to you.  And it might be worth that price for your piece of mind.  In my case, I might reject any price out of fear that paying would brand me as a target for future schemes.

I would feel very confidant walking into court (which is never going to happen by the way) and showing the judge my request for a justification of their claim, and the fact that they provided no such justification.

moozie

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Re: Getty Demand Letter - Rights-Managed Image
« Reply #5 on: December 01, 2016, 08:16:23 AM »
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.

Spotted a Picscout in my analytics and decided to check.

Downloaded an image from a popular free image site which licenses the photos as free for any personal and commercial purpose.

I used image reverse and i'm really shocked to find out the photo is from bigst0ckphot0 and f0t0lia.com.

I quickly removed the photo from my website and began to track back my downloads page.

I can confirm it's downloaded from that free website. Still have the record in my download page. The free photo website have since taken down the image as the url page can’t be found.

Any advice is greatly appreciated as they may take legal action.

Matthew Chan

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Re: Getty Demand Letter - Rights-Managed Image
« Reply #6 on: December 02, 2016, 04:55:10 PM »
Why would you assume that they may take legal action against you when history has shown it rarely happens?  Is there something about your case or situation that is special?

And regarding advice on Getty Images letters, there are hundreds of posts on generic/vanilla Getty Images letters here. Plenty of free videos too. Go start reading this forum. 

The exception to all the self-education is if you want to pay for premium ELI phone support service or enroll into Oscar Michelen's Defense Letter Program which allows you to shortcut the learning process.

Any advice is greatly appreciated as they may take legal action.
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

 

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