ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: loserboy on May 28, 2012, 10:25:45 PM
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Returned home from a Memorial Day weekend with the in-laws to find "the" letter from getty images...so here's the situation:
My wife is a web designer and currently works for a non-profit. Several years ago while she was out of work, she stored her stuff on-line as part of an online portfolio. This site doesn't make any money and is simply a resume/portfolio. On one buried page there sat six or eight screen caps of comps that had been done for something which were ultimately never used. One of these comps included an image that is probably no bigger than 1/2 an inch maximum--this is the image that is in question.
From the screen cap they sent us it is impossible to make out the image definitively as it is almost completely blurry and illegible. They are asking for almost $900.00 for this image.
I was going to call, and then everything I read said to handle this through written correspondence, so that's what I'm planning to do. I will probably write a letter letting them know that the image has been taken down include an initial payment of about $100 fair use, which they will probably reject and then follow the route that it seems so many others have followed.
Just wanted to vent and start jotting some things down, thought posting here was probably a good way to begin organizing my thoughts...thanks for listening...
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Who owns the site-- your wife or the non-profit?
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This site is ours...like I said it is basically her portfolio, where she keeps an online resume and some examples of the work she did at different times in her design career.
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Actually thinking about discussing fair use in the letter...and then quoting a few cases. Some of the stuff I'm reading about fair use of photography discusses the thumbnail size and awful quality of the thumbnails as being fair use since the images themselves are obviously not being used to make money...as I stated, the image itself is about a 1 inch screen cap of a web page (meaning the photo in question is probably 1/2" if that)....
Who knows...
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"Fair use" isn't determined by "exclusivity" or "non-exclusivity".
The law is quite specific on what constitutes "fair use".
It's normally reserved for educational institutions, non-profits, parody, and critique.
In the first two instances, they'd have to be accredited/registered entities, and even then there are restrictions.
S.G.
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What I've seen here: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html
it seems like the rulings on photography extend more towards whether or not the use of the photograph would somehow prevent the photographer from making money and the quality of the images in question...
I'm also thinking about putting in an arbitrary deadline...you know, I write this letter, include a $100 check and then put in a statement similar to their b.s. statement...if I do not receive a written notice that you have not accepted this settlement offer it will be understood that you agree to this settlement offer and the items set forth in this response...
Yeah, I know it doesn't hold any legal muster, but it would be nice to give them some of the same b.s. back that they love to dish out.
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The link that you've provided applies to a registered educational institution.
Therefore, the guidelines as written there may not apply those who aren't students or faculty of the institution.
Outside of those confines, one has to be quite careful.
Here's some info in plain language:
http://en.wikipedia.org/wiki/Fair_use
From the copyright office:
http://www.copyright.gov/fls/fl102.html
There's not a lot to that section of law. But, court decisions are often based on previous court precedents, and the burden of proof is on the defendant.
S.G.
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S.G.
I was looking specifically at the Stanford website because it collected fair use for all sorts of media...particularly this section: "Fair use. A search engine’s practice of creating small reproductions (“thumbnails”) of images and placing them on its own website (known as “inlining”) did not undermine the potential market for the sale or licensing of those images. Important factors: The thumbnails were much smaller and of much poorer quality than the original photos and served to help the public access the images by indexing them. (Kelly v. Arriba-Soft, 336 F.3d. 811 (9th Cir. 2003).)
and this "Fair use. It was a fair use, not an infringement, to reproduce Grateful Dead concert posters within a book. Important factors: The Second Circuit focused on the fact that the posters were reduced to thumbnail size ..."
Neither of these cases involved academic institutions and both were for profit endeavors...
in any case the "fair use" argument and court citations would be part of an overall barrage of stuff I'd throw back at them if they don't accept my $100.00 in the 14 day window...
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I would not go the fair use direction, it will get you nowhere, whilst at the same time, you're telling them you used the image. Admit nothing, word your letter in such a way where you admit nothing. There is a good post here with some good ideas to assist with your response..Remember Getty is not judge and jury, it is on them to to show they own the image in queston.. Keep it short, simple, factual, and ADMIT nothing..
There was another poster in a similar situation, he/she had a portfolio page that showed some sort of print advertising, containing an image in pdf format.The image used in the ad was roperly registered and Getty came at this prson for having the pdf sample on their site.
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+ 1 for keeping it short and simple. I agree about admitting nothing as well as not getting into the fair use argument.
If you're going to quote, quote from Getty CEO Klein (vids on the home page of ELI) where Klein encourages people to use Getty images as long as they're not used for a commercial purpose. It seems to me that your wife fits this category perfectly. Let's see what kind of BS reply a Getty intern will have for that one.
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I'll go out on a limb here and tell you Getty's response:
"The image in question was a screen capture used for portfolio purposes to generate revenue for the infringers business, it does not matter that the image appeared somewhere else. The image appears on your web-site and there is no valid license agreement...yada, yada, yada..
I might be inclined to reduce the response time from 14 to 10 day, mail it and date it on a Friday, with any luck it will take a few days to get there, and you've already lost sunday, you might just get lucky and they might miss your deadline.
+ 1 for keeping it short and simple. I agree about admitting nothing as well as not getting into the fair use argument.
If you're going to quote, quote from Getty CEO Klein (vids on the home page of ELI) where Klein encourages people to use Getty images as long as they're not used for a commercial purpose. It seems to me that your wife fits this category perfectly. Let's see what kind of BS reply a Getty intern will have for that one.
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I would include in your letter, your promise to make the world aware of their tactics - if they don't accept your offer. You could offer to write letters to editorial columns of newspapers, consumer protection advocates, and even the Attorney General.
From what I have read, they have not proven the image is theirs - they have only made the claim. Make them prove it. It appears they often cannot.
Others in this forum claim that Getty is looking to go public. I think they will be adverse to bad press until such time as they do go public. Use that reluctance to your advantage.
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The Stanford guide was referring to a single case where a search engine pulled up small thumbnails of images (like google images doe snow) when folks put in a search request. Because that was not a commercial use and was leading folks to where those images could be found, the search engine was found to be making a fair use of the image. Many cases have held that promoting yourself in anyway is pretty much a commercial use even if you don't make money on it. So I would not count on that defense in your case.
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No, however if this is a half-inch image on a still of a proposed brochure on a second or third level web page with few visitors, isn't there such a thing as de minimis infringement?
http://www.ivanhoffman.com/infringement2.html
If the use of this image is as minor as described, I would start quoting precedents and essentially tell them to pound sand.
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Great info MC, within 5 yrs, we'll all be able to hang out a shingle!
No, however if this is a half-inch image on a still of a proposed brochure on a second or third level web page with few visitors, isn't there such a thing as de minimis infringement?
http://www.ivanhoffman.com/infringement2.html
If the use of this image is as minor as described, I would start quoting precedents and essentially tell them to pound sand.
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Okay as long as I get to be the one to yell back at the judge, "No YOU'RE out of order."
Oh wait, the next shot after that is usually from a jail cell. Bad idea.
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Thanks for all the help here...it truly was as minimal as mentioned. My wife isn't a freelancer, she's been working as a salaried employee of a non-profit for several years. She occasionally put stuff up on the site as part of her portfolio...it required about six clicks to get to this particular page and the image in question truly was a screencap of a proposed page on which the image appeared...in fact the site should have been password protected because it really isn't for the general public at all...it's there as a "just in case" my wife ever does lose her job and needs to get her portfolio up to speed quickly.
I've already constructed a decent letter not really mentioning any legal precedent, but following the basic procedure--provide me with proof otherwise this isn't legally a debt at all, provide me with how you came up with the price, etc. etc.
I'll save the legally stuff for their response. Since I'm a school teacher and summer is rapidly approaching, I'm also thinking about a series of phone calls which I will make depending on their response to my first letter or two. I will let "whoever" answers the phone know that I am recording the conversation (which I will be) in order to have supporting evidence should any of this go to trial. Since I've got time, I might call until I get legitimate answers to my complaints. If that's once every two weeks, or once a week, or everyday...if they are going to say my wife owes them ANYTHING, I should be able to get legitimate answers to my questions and the proof that they're legally required to produce...
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Hmmm, I never thought of phone calls on a daily basis until I badgered them into sending me a statement that they were no longer perusing the matter.
With that said, I suspect once you told the person on the other end of the call that you were recording the conversation would come to an abrupt end.
My recollect from reading every thread in the forum last summer is that no one has had a positive outcome with phone conversations with Getty interns, but this might be worth trying for someone who can stay calm and collected, though if the outcome produced a positive result I'd be, frankly, knocked right out of my moccasins.
I think for a "just in case we go to court" outcome you're better off with a 100% paper trail.
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Right on loserboy. And remember that petulant tone when you spring the, "This isn't getting us anywhere. Let me speak to your superior."
A lot of people on here are not fond of getting on the phone. But I think it can be a quick way to get to the owner of a company. You start nagging the CEO (or his secretary) about an issue that may seem trivial to them, and suddenly the collection department may very well reverse course. If he has to spend half an hour answering your questions, it will likely be looked at as a money-loosing scenario.
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I actually think a recorded phone conversation would be a much better "just in case" we go to court trail. People generally, and interns specifically, no matter how well trained simply don't know how to hold conversations. Every misstatement, every time they say something and it's recorded, they can't take it back. A response letter by them is mulled over and reviewed, a conversation is quick and requires people to think on their toes and is much likely to get answers that would make the entire case seem ridiculous in a court of law...
I'll have about ten weeks off, so I can truly call every day and each day demand the proof. I can make it my summer hobby.
As for them hanging up or not speaking if I record the call, I'm pretty sure they'll be recording the call as well, so it's a win-win. I'm from the "if you can do it, why can't I" school of thought. And, yes, I would waste their interns time, their law departments time, secretaries...and I would ask for detailed explanations, I've already been compiling a list of questions that would require answers...of course maybe they'll accept my offer and be done with it--lol!
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Just be careful if you decide to do this as it works both ways. Good luck and please keep us posted.
Every misstatement, every time they say something and it's recorded, they can't take it back.
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Keepfighting is correct. People should be careful of phone calls.
I think that phone calls are employed to blindside people, or to put them "on the spot".
Conversely, one may assume that the person on the other end is "weak", or "ignorant", but they may be a professional that knows more than you do.
An attorney may be calling you.
Take some good advice; cool it with the phone call stuff.
A letter might be ok in certain situations. But, the only letters that you might care to write are those asking for proof of the claim.
S.G.
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Well, it turns out Getty cashed my FINAL offer check of $100.00. Probably more than I should have offered, but I really didn't want to deal with this for the entire of my summer break--I want to have some fun! (I'm a public school teacher). Below is a cut/paste of the letter that I sent them, along with a check for $100.00 with "final settlement" written in the memo section:
Gettyimages
601 N. 34th St.
Seattle, WA 98103
Regarding Case: xxxxxxx
This letter is in response to your letter dated May 24, 2012. In this letter you state that an image used on the website xxxxxxxxx.com was identified as being in violation of U.S. copyright law. The webpage in question was removed immediately. This website is a personal website and is currently password protected and unavailable to anyone other than my wife and myself.
After a considerable amount of research, I found many similar images ranging in price from $10 to $50 with unlimited use. Such images were found at istock.com as well as at canstock.com. I am enclosing a check for $100 in order to take care of this matter, in spite of the fact that this amount is greater than the going price for similar stock photography and is far in excess of what would be owed for a low-res thumbnail photo of an indistinguishable image (see below).
Understand that the website in question is simply an online portfolio and does not generate any revenue; it is not nor ever has been a business website in any way nor it receives only negligible web traffic. My wife is not a freelance artist and is not currently looking for employment. It simply serves as a place where samples of my wife’s past design work is collected and stored. This work includes her own art pieces as well as web comps and samples she has created through the years. The alleged image was actually part of a screen capture and was incredibly small and difficult to see on the original webpage (and doubly difficult to see on the copy you sent us.)
In spite of this, I have included a payment of $100 in order to put this matter behind us and stop wasting both of our times and resources on what is inevitably seems to be nothing more than a minor misunderstanding on both ends.
As per the guidelines your legal team has laid forth, you too will have fourteen days from the date of this letter to respond. If no response is received in the 14 days it is understood that you accept the $100.00 settlement and no further collections or legal action from getty will be forthcoming.
If you do not accept this settlement, please return the check promptly within the agreed upon 14 days. Also include with your response the following items: a) proof that you are holders of the copyright, including copies of the signed paperwork verifying that you are now the copyright holder; b) the method by which you formulated your settlement amount; c) a clearer copy of the infringement and d) the date which the infringement began.
Please understand, you are obligated to provide legal standing when collecting a debt, this includes the proof that this is the image in question, proof that you are the owner of the alleged image and proof that the amount owed is consistent with the going rate for similar images. If you are unable to provide all of this information in the timeframe set by your own legal department, then I will consider this matter closed.
Thanks in advance for your prompt attention to this situation, I look forward to settling this quickly and amicably.
Sincerely,
Jxxxxx
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nice work loserboy! I particulary like the idea of throwing a deadline back in their faces..no go have some fun this summer!
Perhaps this is a sign, that they are slowly changing their ways.
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I'm just curious to see if they'll send me a response letter. I also figured $100 was right about the sweet spot of their blackmailing/extortion letter. If they do send me a response, I'll be sure to post it.
As for the 14 day thing...I'm a stickler for the whole "if it's good for you, then it's good for me." I had a whole long term plan with the 14 day thing to...it was a doozy.
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I've been sending deadlines with my letters from Day One, and to date the rotten bastards have ignored and/or missed all my deadlines.
Of course I've ignored and missed every single one of their deadlines, too.
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I was planning a follow-up series of recorded phone conversations. ONLY discussing the 14 day deadline. Essentially guiding the conversation until someone could specifically tell me the reason for the 14 days. I threw in the whole " your legal department" b.s. in the letter because we both know that is exactly what it is. See, if they question MY 14 day deadline as being not legal, then they immediately are admitting that theirs is simply an extortion tactic with no actual legal standing.
I'm big on throwing people's words back into their faces (that's why I'm an awesome middle school teacher)
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No to splash cold water on anyone but let's wait 14 days and see what happens. IN the past, someone sent in a check and it was later refunded or returned.
I find it unlikely they will give you anything in writing. At best, I am guessing they will quietly go away.
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Matthew-you'll be seeing a small paypal contribution from me in the next few days...because if it weren't for this sight I'm not sure how I would have handled this.
On the topic of the check/refunded check/14 days...the letter was mailed out 17 days ago, and the check was deposited today (and has already been deducted).
I'm guessing they will simply vanish as well...but if not I'll keep everyone posted.
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If after 30-60 days, there is no refund check, then this is worthwhile to report on. It might show a sign of some behavior change in that they will take the money "something is better than nothing".
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I can personally recall three other incidents wherein the case was very weak, and Getty took a small payment and scurried off...
S.G.
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Soylent- I'm thinking that's the case here. Not only did we remove the image, we completely password protected the site (since it was never a public site). So not only can they no longer access the site, even the wayback machine internet archive can't pull up more than half of the images and pages that were on the site...that's how rarely the site was accessed by anyone.
Additionally the picture was a thumbnail, any attempt by them to provide evidence via a high res image they claim was copyrighted by them will fail. The image on the site was no bigger than 1/2 " by 1/2 inch and was a screen cap...
I have a feeling they'll take their 100 bucks because they know it is the only offer they'll ever see from me. But again, I'll keep everyone posted.
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Soylent- I'm thinking that's the case here. Not only did we remove the image, we completely password protected the site (since it was never a public site). So not only can they no longer access the site, even the wayback machine internet archive can't pull up more than half of the images and pages that were on the site...that's how rarely the site was accessed by anyone.
Additionally the picture was a thumbnail, any attempt by them to provide evidence via a high res image they claim was copyrighted by them will fail. The image on the site was no bigger than 1/2 " by 1/2 inch and was a screen cap...
I have a feeling they'll take their 100 bucks because they know it is the only offer they'll ever see from me. But again, I'll keep everyone posted.
Loserboy, this is how you can wipe out the Wayback Machine's records of your website entirely:
http://archive.org/about/exclude.php
It may be archived elsewhere, but this is a start if you don't want any of it being recorded. Archive.org is a perfectly robots.txt-compliant crawler, unlike bandwidth-hogging server intruder PicScout.
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Loserboy, you are beginning to look like a winner in my book.
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Just took a look at check image from my bank. Has several things written on it, an invoice # as well as what looks like it might be a different settlement number written above the original settlement number....this was obviously NOT deposited mistakenly, a lot of work went into generating new numbers, etc.
Don't have original Getty letter with me right now, when I get home I'm thinking of doing the following:
logging into Getty settlement site with my original number and access code, seeing if compliance stuff is still up there, or if it is gone or listed as paid or settled...logging in with new # written above it and doing the same...
once I do this I will let everyone know what happens when I try to log in...
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Interesting, I would like to know what happens with that.
Also just thought of this for anyone wanting to send a settlement check in the future they could write/print on the back of the check a clause something like:
By depositing this check (insert agency/troll name) settles this matter completely and releases all future claims regarding case #######.
I am not a lawyer and maybe Oscar or someone will know how to word it better but if they cash a check with a release on it I can’t see how they could do anything else to you. Also you can still give them a taste of their own medicine by putting on it “This check is not valid after 14 days.
Just took a look at check image from my bank. Has several things written on it, an invoice # as well as what looks like it might be a different settlement number written above the original settlement number....this was obviously NOT deposited mistakenly, a lot of work went into generating new numbers, etc.
Don't have original Getty letter with me right now, when I get home I'm thinking of doing the following:
logging into Getty settlement site with my original number and access code, seeing if compliance stuff is still up there, or if it is gone or listed as paid or settled...logging in with new # written above it and doing the same...
once I do this I will let everyone know what happens when I try to log in...
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Case closed according to Getty compliance....
Logged on with case # and access code, here is the message that greeted me:
Thank you for your inquiry. Getty Images has previously received payment for this case and now considers this matter closed.
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screen capture and print!
Case closed according to Getty compliance....
Logged on with case # and access code, here is the message that greeted me:
Thank you for your inquiry. Getty Images has previously received payment for this case and now considers this matter closed.
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screen capture and print!
Case closed according to Getty compliance....
Logged on with case # and access code, here is the message that greeted me:
Thank you for your inquiry. Getty Images has previously received payment for this case and now considers this matter closed.
Done and done!
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Congratulations loserboy, you handled that beautifully. I am sure you are glad it's over, I am very happy for you and your outcome.