Editor's note: Oscar's responses are in italics.
1. have you ever sued or countersued Getty in any of these instances?
No, Getty has never sued any of my clients. They have only filed about a dozen or so lawsuits over this issue.
2. if so, how many? did you win, lose or settle?
While I have not personally been involved in any Getty litigation yet, I have looked at about 12 cases or so that have been filed. All of them ended very quickly. Either Getty entered a default because the defendant never answered the complaint or the case was settled before an answer was even submitted. In all of the actions, it appears that the defendant had allegedly used more than 20 images.
3. if you did win/loose/settle how much did this cost your client?
Getty has had different settlement figures depending on the case. We look at each case on its own and if the client wants to settle we attempt to settle. We are currentlyin settlemetn negotiations with them on a variety of cases.
4. is there a precedent with any case which is similar?
Not really.Understand that in NY, a federal court only recognized this "retroactive license fee" idea as an element of actual damages in 2001. It was not approved of before then, so there has not been a lot of litigation on it. I have not found and Getty has not shown me any case they litigated to conclusion. I have run my legal position by qualified IP litigators who agree with me on this that the damages would be closer to what I claim they should be than what Getty claims they should be. If you look at the lawsuits brought by the RIAA over downloading songs illegally you will see that the Federal Courts did not support the RIAA's damages claims and reduced almost many cases to the $200 minimum. In my opinion, if that happened in cases of intellectual property that everybody knew is copyrighted (songs) then how could it not happen in cases where most people would never know the work (images) were copyrighted?
5. what are the phases when one gets served....file extension, respond, etc...and how much will each phase cost?
If litigation is commenced in NY (where Getty has brought most of its claims), I will reduce my hourly fee to $150 and ask for a 6 hour retainer ($900) That should get you to the point of an answer and a settlement conference with the court where hopefully it will be resolved. If not, I plan to file a motion to address the damages issue immediately which would likely take another four hours. I have contacted a qualified IP litigator in Seattle who has agreed to work under the same fee structure if Getty sues in Seattle (its HQ)
6. are you familiar with any Getty cases where they have been in federal court and what were the outcomes?
See my prior responses.
7. if the date for the copyright on the images is 2 years AFTER Getty made contact with their letter (this being documented) is that legal for them to file a complaint in federal court, since they did not actually have a copyright on the images when the letter they sent stated they did?
You cannot file a Federal Copyright lawsuit UNLESS and UNTIL you have registered the images so it is not unusual for a claim to be brought for work that was registered after the infringement occurred. There is nothing wrong with that. If the infringement occurred at a time when the images were not registered, then Getty woul donly be able to claim ACTUAL and not STATUTORY damages. See my post on a summary of the Getty Issue for more info on this.
Topic: Getty HAS filed a Complaint (Read 12398 times)