UPDATED: Getty Images/Memorial Day Welcome Home surprise...

[loserboy]

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...

[lucia]

Who owns the site-- your wife or the non-profit? 

[loserboy]

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.

[loserboy]

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...

[SoylentGreen]

"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.

[loserboy]

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.

[SoylentGreen]

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.

[loserboy]

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...

[Robert Krausankas (BuddhaPi)]

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.

[Mulligan]

+ 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.

[Robert Krausankas (BuddhaPi)]

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.

[stinger]

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.

[Oscar Michelen]

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.   

[Jerry Witt (mcfilms)]

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.

[Robert Krausankas (BuddhaPi)]

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.