Getty From Start To Finish

[g-mareng]

Lucia - I plan on keeping the LLC alive because I still do use it.  Again, I do side work under it but until recently I have not had much work due to the economy in the construction industry.

Buddhapi - I completely understand what you are saying about Getty.  Obviously that is why they are doing what they do and we are all on this blog.  My point is that in their first letter they asked to show that I had a license from another source for that image.  Well, in my mind, my other "license" for the image was in the book that I own.  If I invited Mr. Getty to my house and he saw my book lying on the coffee table and started flipping through it and came across this image would he instantly accuse me of copyright infringement because I did not have a license through his company to possess that image on my coffee table?  In his mind probably so but in my mind the image was legally obtained for my use as a decoration or discussion piece on or within facility that I own.  I guess because the image had absolutely nothing to do with my business, I just like the picture and I enjoy the photographer's work, I figured it was more of a decoration than an item used for marketing.  I view my website, or anyone's website, as an extension of their office or home, whatever their intent.  Pictures and banners on a website are like pictures or banners hanging on my wall in my house or office.  They have no relevance or significance to my success or marketing.  They are merely there to make me happy when I see them.  Now if I was using the image as a tool to market myself or to make money off of I can see the injustice in that to the photographer or to Getty.  I guess that was my philosophy on it when I did it....not knowing it would turn into this of course!

[moelle]

I am a Canadian solo website designer that works from home. One of my clients recently got a letter from Getty stating the usual stuff and citing a single image that was used on the site I designed. The demand was for $950.

I went to Getty Images and priced the same image exactly as if i actually wanted to purchase it...$450 for 1 year.

The image in question was a thumbnail from google image search, after some research, i am aware now i should have sought the owners permission before using it. The image was removed from the site immediately.

I told my client that no matter what, they will not be on the hook for this and I will take care of it.

I spoke with a local attorney who specializes in copyright and got a price of $500 to write a letter back to Getty. Not really worth it if the letter costs $500 and may not do anything useful. 2 letters into it i would be better off just paying the $950.

Anyways, the lawyer understood the dilemma and gave me some advice. Send a letter myself asking them to prove ownership of the image before considering paying anything...sounds reasonable. The letter is as follows:

In an effort to amicably resolve this issue, please provide the following information related to the image in question:
- the complete name and country of residence for the creator/author(s);
- the date(s) the photo was taken;
- the date(s) of first publication;
- how many other individuals or companies have been granted rights to the image;
- proof that the images in question have never been contained or distributed in other image libraries, online or otherwise as it may be the case that the client acquired a license via another supplier subsequently acquired by Getty Images, for example;
- if you do not have copyright registrations we will also require proof of title to each of the works in question whether by Getty Images or the individual or company you purportedly represent; and
- we will also require the date upon which the works were acquired by Getty Images or, alternatively, the date upon which you obtained the legal right to distribute the images on behalf of the author/creator(s) as our client's acquisition of the works may pre-date such arrangement.

Upon submission of the information as outlined above which would substantiate your claim, we can move to resolve the monetary issue surrounding the demand.

Getty quickly replied:
The requested articles - such as proof, registrations and representation would be furnished only when compelled by the court through the course of discovery.  To provide this information beforehand would take additional time as well as additional costs.  Our settlements are set up to quickly close unauthorized use cases.  If cases were to go to legal proceedings, our represented photographers would have registrations prior to filing.
 
Getty Images has no obligation to work with you since the liability for the infringement rests with the end user, [my client].  If you are interested in settling this matter on behalf of [my client], we will work with you through June 27, 2012. If we are unable to reach settlement by this deadline, Getty Images will continue to pursue your client directly. Any conversation moving forward will need to be settlement to close this case.

Hmmm, i want proof that i owe them money before paying them but they wont provide proof without going to court and costing me more money...thats not playing very nice.

In doing some research, the canada statute of limitations (http://www.ehow.com/facts_7164951_statute-limitations-canada.html) extends to 10 years (or so i believe) in canada so sitting and waiting for them to give up is out of the question.

I could roll the dice and see if they take my client to court but thats not really fair to my client is it?

I think i will try the option of negotiating a lesser settlement. Maybe i can beat the previous $585 record set above?

Some useful links i found so far (in addition to this forum):
http://womeninbusiness.about.com/od/copyrightlaws/a/How-Can-Getty-Demand-More-For-An-Image-Than-Worth.htm
http://sbinfocanada.about.com/od/insurancelegalissues/a/copyright1.htm
http://womeninbusiness.about.com/od/copyrightlaws/a/Can-I-Ignore-A-Getty-Settlement-Demand-Letter.htm

[Robert Krausankas (BuddhaPi)]

If you offer them a lowball figure, they'll just write you off and go after your client, and now they have you on a deadline.. Is you client in the US?

somebody, somewhere, either you or your client will pay in some manner, be it with cash or be it with sucking your time away..

[SoylentGreen]

A quick message here in regard to moelle's post.
They'd have three years in which to litigate.
The link that you've provided refers to uncollected debt, and this isn't a debt a this point.

The question of "copyright" for Getty in terms of both Canada and the US usually hinges on whether or not the photographer/artist had an exclusive agreement with Getty at the time of the alleged infringement.
As ususal, Getty line "we won't tell you anything, just pay us" is a sure sign that they don't have the right to collect.

S.G.

[Moe Hacken]

Moelle, without the information you requested from them, their letter amounts to phishing.

I would insist on the proof and ask if THEY would write a check in response to a perfectly unsubstantiated claim. You could do so in writing, in a professional tone, but be specific and firm when you make this point.

At the very least it will buy you time and make them realize you're no pushover and that you're aware of the rules of engagement.

So far this community is not aware of anyone being taken to court for an amount that small. They may try to play tough and bully you, but the reality is that it's not worth their time to go there for $950. Wouldn't that be a small claims court issue where you live?

Matthew Chan offers an orientation call for a very reasonable fee that can save you a lot of time if you're busy. I'm sure you'd rather spend time making your clients happy than dealing with posturing copyright trolls. You can read the details about that program on this page:

http://www.extortionletterinfo.com/eli-phone-support-call-with-matthew-chan/

Or you could invest $195 for Oscar Michelen's defense letter program and get the trolls off your client's back. That's a lot better than $500 and has been working like a charm for many folks in this community:

http://www.extortionletterinfo.com/oscar-michelens-getty-images-defense-letter-program/

Best of luck with your case and do let us know how that goes for you.

[Robert Krausankas (BuddhaPi)]

While Oscars Letter program is great, he can't help people in Canada, thats why I asked if the client was in the US.

[moelle]

The client is in canada.
Just received a response today from Getty, see below:

After careful consideration, Getty Images is willing to accept $700.00 as full and final settlement of the demand that was recently presented to [my client].  This offer is made conditionally and it will automatically be withdrawn if full payment is not postmarked by June 27, 2012.   Payment postmarked after June 29, 2012 must be in the full original amount of $950.00.

My response to them will be as follows:
I am a small business owner that doesnt make enough money to possibly afford that amount. I have complied with your cease and desist demand by promptly removing the image in question from the web. I have reviewed your own website and found that if I had licensed the image from you it would have amounted to only $415 for a full year of licensing.

I would like to amicably resolve this matter on behalf of my client but will require a substantially more affordable settlement. Presenting me with a dollar amount that i do not have the funding to pay and limiting it to a certain number of days to pay it forces me to say no when I really want to say yes and be done with this.

Thank you for your reconsideration.

I am getting closer to beating the settlement originally posted in this thread....

[Robert Krausankas (BuddhaPi)]

Chances are good, they will now cut you out of the equation and approach your client, and probably take back the "reduced" amount as well. You need to be pro-active here and sit down with your client, explain the situation, refer them here, and hope you can salvage the relationship you have with this client.

If you've done other work for other clients, you'd better be going thru those files, as it is likely they will get letters as well, which could ultimately put you out of business, or at the very least leave you with less than a stellar reputation.

[Jerry Witt (mcfilms)]

I was just thinking that Robert. If Getty was smart they'd take the $415. But they will now stop communication with moelle and double up on pestering the client for the original amount. They will be in a position to try and make you look bad by throwing out that they offered you a reduced settlement and that you refused.

Like Robert said, your best move here is to get out in front of the issue and maybe even point your client to this thread. (I sure wish some enterprising lawyer in Canada would set up a letter-writing program modeled after Oscar's.)

[moelle]

I have recently received some useful info for any canadian going through this. The information below was sent from David Fewer Director CIPPIC, the Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic, University of Ottawa, Faculty of Law.

INTRODUCTION
Stock image companies such as Getty Images and Masterfile have begun contacting small businesses in Canada alleging that these businesses have infringed copyright in their images and demanding payment of very large fees, often in excess of $1,000.00 per image and usually above the stand-along fee for licensing the image.   

This FAQ responds to some of the most frequent questions CIPPIC has received in connection with these practices.

FAQ
1. Do these image companies have the right to make these demands?
Copyright is a property right.  It’s like trespass:  if you trespass on someone else’s property, you are liable.  There is no intent element.  Similarly with copyright:  if you've copied without permission, you've infringed.  You don’t need to register copyright to hold the rights.  There’s no “copyright number”.  All the image company requires to make its claim is to own copyright in an
image, or enjoy an exclusive license to commercialize the image.

There are defenses to liability such as fair dealing, but these defenses don’t apply to the vast majority of cases that we have seen.

2. What about “innocent” infringement? I didn’t mean to infringe copyright – am I still liable?
"Innocent" infringement is still infringement - innocence is only relevant to the damages award.   
 
3. What kind of damages can the image company expect?
In Canada, a copyright complainant is entitled in cases of infringement to elect statutory damages in the amount of $500-$20,000 per instance of infringement.  Generally, a court will try to approximate in statutory damages what a successful plaintiff could have theoretically proven as damages suffered.  This may be, for example, a lost licensing fee.  In most cases, courts are unlikely to award more than the minimum of $500 (per work infringed).   

4. Can innocent infringement reduce the damages I can expect to pay?
Yes:  in cases of innocent infringement, the court has discretion to go as low as $200 per infringement.  The court also has discretion to roll multiple innocent infringements into a single award of $200 for all instances.

5. What kind of cases qualify as “innocent” infringement?  
Where a third party has put you in an infringing position, you would likely have a claim to be an innocent infringer.  For example, if you outsourced development of your website to a third party and that third party supplied the image, you would likely have a claim of innocence.  But if you took the image yourself and just didn’t know someone else owned copyright, that is not innocent.  You’ve simply misunderstood the law.

6. Do I have to take the image company’s demand at face value?
  It is not clear to us that the stock image companies have their ducks lined up properly in all cases.  In many cases, the company has claimed rights in images that Canadian business claims it properly licensed from third parties.  Stock image companies are in the businesses of acquiring images - it may not have kept track of licenses associated with such images.  Accordingly, there appear to be many cases in which the image company is demanding payment for properly licensed images.  In each case, it is important to obtain from the image company the patrimony of each image claimed.

7. How can the image company enforce its rights?
The image company has to sue you in court to enforce its rights.  Note that if the image company does not own copyright in the image, or does not have an exclusive license from the copyright owner, it cannot sue in Canada.

8. How likely am I to be sued for a relatively small amount? 
With one exception, we have never heard of an image company going to court for a low dollar figure.  Generally, businesses do not go to court unless it is cost effective to do so – in other words, if the expected damages recovered exceed the (significant) cost of paying lawyers to go to court. That said, it is entirely possible that a stock image company could sue, perhaps to “make an example” out of a particular defender (and so cow other businesses into settling).  After all, who would have thought that the music labels would sue 30,000 music fans for sharing music over file-sharing networks?

The one exception we do know of is Masterfile, a Canadian company.  Masterfile will sue in Federal Court for even a small number of images.  This appears to be part of its strategy to pressure companies into settling.  Masterfile is the most aggressive of the companies engaging in these tactics.

9. The stock image company has given its file to a collections agency – is my credit rating at risk?
Rather than sue, the stock image companies tend to assign the demand to a collection agency.  You should know that this is not a “debt”.  No one can hurt your credit rating here.  Instead, what the image company has is an unproven allegation of a legal wrong.  That's a different bird entirely.  It does not become a debt until the image company sues and receives a judgment, or
until you agree to a settlement figure.

10. I am not a business – does the image company still have a claim? 
The image company still has a claim, but you no longer fall among the image companies’ apparent targets.  The image companies target small businesses – companies who are unlikely to fight them because it is cheaper to settle.  The image companies have dropped cases against non-profit organizations in the past.

11. I’ve received a demand – what should I do?
Your first response should be to investigate how you came to have this image on your website.  If you have a license to the image, you should respond to the claimant identifying the image and the license you enjoy. You might consider demanding that the image company prove it has authority to demand the fee by providing a copy of its agreement with the original copyright owner of the photo in question.  If the agreement does not assign copyright to the image company, or is not an exclusive license, the company cannot sue you for infringement. If the claim looks well-founded – turns out you didn’t have the right to use that image, and the image company holds an assignment of copyright or an exclusive license – then you should remove the image from your website.  You then have options on how to proceed.  These options include:
• Accept the fee demand.
• Negotiate for a lower fee.
• Offer a fee in line with what the company could expect for statutory damages (in Canada, $500 per image).
• If you qualify as an innocent infringer, offer the company $200 per image as an equitable settlement offer.
• Tell the image company that the images have been removed and say that ends the matter (and risk being sued).
• Ignore the image company (and risk being sued).

The option you select depends on your risk tolerance and your objectives.

Hope the info above helps others.

[Mulligan]

+1 to what Robert and Jerry posted.

Moelle, the odds are not in your favor that they're going to keep coming down.

Instead, they'll most likely reject your offer and then warn you that they're about to "escalate."

At that point, Getty will turn the matter over to some copyright trolling attorney who will then probably demand about three times as much as the original demand.

Trying to reason or negotiate in good faith with these ass clowns is similar to trying to stick a sharp toothpick in a pissed off yellow jacket coming right at you. It just ain't gonna happen.

[Robert Krausankas (BuddhaPi)]

no disrespect meant for David Fewer, but I would take all of this with a grain of salt, doesn't much matter what the law "states", fact of the matter is that Getty will most likely NOT file suit over 1 image. There are ways of fighting this besides the "legal" way.. Getty knows this, they've been playing the game for a long time, and it's strictly a numbers game to them..

[SoylentGreen]

Moelle,

Thanks for your posting of Canadian info.  But, the information that you've gleaned from Mr Fewer is really, really old.
It has the "not matter what, you've infringed, and you have to pay" spin.  This argument assumes that your accuser is the actual owner of the copyrighted material.
We've seen that this is most often not the case, especially with Getty.

Your only difficulty will be in handling this in a manner that doesn't make your client irate.

---

"Innocent infringement" is an angle that could work for you if necessary. Again, Getty usually doesn't own the actual copyrights to their content.
That is, they not do have the copyright registrations in their name, nor exclusive contracts with the artists in most cases.  Consider the following:

"Registration, while not necessary, provides certain presumptions that are useful if the copyright is litigated and prevents any person from relying on the defence of “innocent infringement” (i.e., where the infringer did not know and had no reason to suspect that copyright existed in the work). If there is no registration, an infringer who successfully proves the defence of innocent infringement could be prohibited from further copying but would not be liable for damages." from page 66:

http://www.osler.com/uploadedFiles/News_and_Resources/Publications/Guides/Doing_Business_in_Canada_-_2011/DBIC-Chapter13.pdf

There's nothing to stop anyone from asking for "Statutory Damages". However, the above would likely nullify this option.

Keep in mind here that we're talking about Canada.  So, a US registration counts for nothing.

---

My personal opinion is that very few people "get it".
They get a Getty letter, post here, get on what I call the "herp-a-derp train" and it goes on and on.
They ask for advice, get advice, then say "yes, but...".  It goes on and on again.

S.G.

[moelle]

It would appear they are unwilling to negotiate any further.
Has anyone ever considered a criminal extortion charge against them? Opinions and advice would be most welcomed.

Under the canadian criminal code...
346. (1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done.

Thanks everyone.

[Robert Krausankas (BuddhaPi)]

what they are doing is within the law, just unethical and sleazy..get ahead of this, and get with your client, at the very least you don't want to make them angry...

It would appear they are unwilling to negotiate any further.
Has anyone ever considered a criminal extortion charge against them? Opinions and advice would be most welcomed.

Thanks everyone.