ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: Aleksandor51 on May 28, 2013, 10:52:56 PM
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Hello everyone. I just found this forum and am glad I did. Five years ago I designed a website for my consulting firm, (very small business as in me, myself and I), using Net Fusion Objects 8. I bought this at a discount from Earthlink as their way of thanking me for using Earthlink to host my site. With the exception of personally taken photos, all graphics and images were part of one of the templates provided by the Net Fusion Objects software. There was no indication that any of these images were copyrighted. Now all of a sudden Getty claims a couple of the template photos are their property and want $2500. Naturally they did not say just when they bought the images, so I would not be surprised if this was done after Net Fusion Objects 8 was released or after my website went live in 2008. That or the designers of the Net Fusion Objects were either deliberately or inadvertently lax about not including copyrighted material.
So instead of going after Net Fusion Objects, or even Earthlink, Getty apparently thinks my tiny business is an easier target. I have not contacted them, and am willing to remove the offending images. However, I do want proof of the date they copyrighted these images. The name of the photographer is included, but I don't know if he should also be contacted. I refuse to pay these scumbags a penny for something that is not my fault. Any advice is appreciated! Thanks.
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Do you have the original Net Objects discs? Does the package contain a End User Licensing Agreement (EULA). I think this happens frequently, and frankly if you licensed the images with Net Objects, you shouldn't have to take them down. If you do find a license, share that info with GI and make it clear that you will be billing for any additional time to address this matter.
If you don't find the packaging (who keeps software boxes for 5 years besides me), you might contact NetObjects about this situation.
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Good points Jerry. I would just add that many times the EULA can be found electronically in the program application folders with a link from menu options in the software itself.
That said, the EULA doesn't necessarily contain good news. Maybe the included photos are for "layout" and design use, or something more or something less ... won't really know till you read it.
I would strongly recommend taking all the site images down till the issue is sorted out.
1) to avoid any appearance of "willfull" infringement in case the images turn out to be registered by Getty.
2) in case there are more Getty images somewhere on your site that they haven't found yet.
3) to start the statute of limitations clock in case it turns out that the images are indeed infringing
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Good points, Jerry and Lettered.
I totally agree with your emotional response Aleksandor. However, you must realize, Getty doesn't really want to turn the tap off on this fountain of wealth that they have found. If so, they would address the causes (like the distributor of the objects you used). Instead, they like to wallow in the dirty money they can make by playing the law against the little guy. It is shameful, but that is the world we find ourselves in.
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Thank you all for the replies and information. I do have the original disks and will check for the EULA. Would it be advisable to ask Getty for copyright proof of the images in question? I want to see legal documentation, especially verifiable dates that they owned the images before they were included in my website. It would not surprise me if their spider bot is designed to find any images they own regardless of the date they were acquired.
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It would not surprise me if their spider bot is designed to find any images they own regardless of the date they were acquired.
If Getty acquired the images after the date that you made use of them (2008?) their claim might still be valid, so long as their acquisition of the library included full assignment of copyrights to Getty... which is a 99.999% certainty (otherwise there'd be no point in the takeover)
From the US Copyright Office's FAQ
"A person or organization that is not an author may be named as claimant only if the copyright ownership of all rights was acquired in writing or by operation of law. Written transfers must be signed by the party transferring the copyright or his authorized agent. In addition, copyright ownership may be transferred by the provisions of a will or by operation of law other than by inheritance, for example, by operations of state community property law"
As an FYI, Getty wouldn't need to show you this documentation prior to the discovery phase of any litigation; though, in my opinion, anyone whom uses a "best practice" when enforcing their copyrights could show their registration certificate or rights assignment paperwork either when issuing their demand and/or at any time it is requested... certainly that's what I do when enforcing my own rights.
Just my €0.02
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anyone whom uses a "best practice" - Getty Images doesn't fall into this category..they only practice "Give us your money"
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Thanks again for more good information. This may be a long shot but I will see if NetObjects can or will provide anything on what licensing, (if any), they have or had regarding the two images in question.
Something else I noticed is that the images were changed, (and possibly significantly to my untrained eye), in the template provided by NetObjects Fusion as compared to what Getty has on their website. Please forgive me if this is a really naive question considering this whole matter is about copyrights, but is it permissible here to upload the template and Getty versions so others can judge for themselves?
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You could link to the page on Getty's systems where their image is located, and perhaps offer a link to a site where your version of the photograph is located - as long as it's a third party site. To my mind, that would be permissible. Just my €0.02.
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Yes provide links to them, as we don't allow the upload of images into the forum any longer. If you are concerned about the legal aspect, you can PM me with the links and I will gladly post them on my blog and comment / link back to them here..
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If Getty acquired the image after it had been on your site it would be almost impossible for them to prove their claim. They'd have to prove you acquired the image 'illegally' in the first place. While theoretically it could be proved it would be a costly exercise. Something we know Getty does not like pursuing usually.
Not being able to provide them with a licence for an image they have not always held the rights to distribute would not be proof that you infringed so I think it is entirely relevant of finding out when the image was acquired.
Of course, they could have always held the rights to this image, but then they should quite easily be able to confirm that...you'd think!
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Robert, I'll send you the links in a PM. Since I removed the offending graphic from my website, the only way you could see it is if I include the .gif file. I went over everything from my installation of Net Fusion Objects and I could not find the file in question. Granted it has been close to 5 years since I did anything with the graphics for this site, so I am not sure if this file was part of a download I got from Net Fusion Objects as a promotion when I purchased the software or not. My website was created on a computer i no longer own, and it is possible that I did not transfer all the graphics files to my present computer. However, I will still contact customer support and see if this is a file actually owned by Net Fusion.
The EULA does clearly state that purchasers of the Net Fusion license have full rights to use any images included with the program. I'll keep looking since these images are scattered throughout the software and may even be hiding in other files on my computer.
Also, the image I used is a collage of four images. Getty is claiming ownership of only two. The two they are claiming were significantly altered, (i.e., gray scale instead of full color, faded edges to blend in with the other images in the collage instead of being sharply defined as in the original, and much lower resolution).
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Also, the image I used is a collage of four images. Getty is claiming ownership of only two. The two they are claiming were significantly altered, (i.e., gray scale instead of full color, faded edges to blend in with the other images in the collage instead of being sharply defined as in the original, and much lower resolution).
As a technical point: the fact that the images were altered has no bearing on their claim - alterations could be classed as derivative works.
17 USC § 106, which describes the exclusive rights in copyrighted works, mentions that a copyright holder has the right "to prepare derivative works based upon the copyrighted work"
I'll concede that there is the potential for a 'fair use' argument that the amount of alteration that you made to the original work resulted in a transformative work but, from your own admission that you merely substituted greyscale for colour and blended the edges of the photographs, I'd be of the opinion that such minimal alterations do not qualify as sufficiently transformative.
Just my €0.02
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I'll concede that there is the potential for a 'fair use' argument that the amount of alteration that you made to the original work resulted in a transformative work but, from your own admission that you merely substituted greyscale for colour and blended the edges of the photographs, I'd be of the opinion that such minimal alterations do not qualify as sufficiently transformative.
I should have clarified I was NOT the one who made the alterations. The changes were already in the image I used in my website. This would be clear if the images in question could be displayed here, so bear with me if my explanations need clarification. So a question now is who did use the originals as part of the transformed image and did that person have permission? And then who is the owner of the transformed image?
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So a question now is who did use the originals as part of the transformed image and did that person have permission? And then who is the owner of the transformed image?
The answer comes in five parts.
1.) Whomever made the alterations to the original is the entity that created the derivative work, though they would need to get permission of the copyright owner to effect such a creation for any reason other than private, personal use.
2.) Such permission would need to be granted explicitly in writing - especially if the intent of entity that made the derivative work was to re-distribute the derivative, whether for profit or otherwise.
3.) In all instances, the author of the original work would hold the copyright in both the original and any authorised derivative.
4.) Any derivative work that is distributed without the knowledge or consent of the author of the original work would constitute an infringement of copyright.
5.) Both the creator of the derivative, and any end users of the derivative, would be liable for infringements per the 'strict liability' nature of copyright infringement under US law.
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Good information, DavidVGoliath. Looks like I really need to find out who all the players are and hope this doesn't get any more complicated. That may be the proverbial needle in a haystack, but it's worth a try.
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An update. I received an answer from NetObjects and they are requesting a copy of the Getty letter as well as some other information about the copy of their software I used. I have a feeling this is far from the first time they have run into this situation. As I stated in an earlier post, I am not positive the image in question came from their software or was downloaded from their website. But it is logical NetObjects wants to be certain since they stated they make sure all images they make available to their customers are legal.
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looks like this has been an issue before with this software:
http://forums.netobjects.com/showthread.php?6333-Netobjects-Fusion-Copyright-Infringement-warning-!!
Web.com Group, Inc. has strict standards when it comes to image usage and we
understand the importance of copyright enforcement. During the past few
years, several purchasers of our NetObjects Fusion software have received
demand letters from Getty Images related to images contained within the
software. The letter basically states that the customer is using an
exclusive image of Getty without the appropriate license from Getty. All of
the images were obtained by Web.com with licenses from the image holders.
Web.com has worked with Getty (and continues to work with Getty) to verify
that any image in question is appropriately licensed or to remove offending
material. Anyone that receives a demand letter from Getty should forward a
copy to gettyclaim@web.com.
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Thanks for the information and link Lettered. The person who started the thread in the Net Objects forum used the exact same image that I used. The response I received from Net Objects was also almost the same as what he received. My question now is how to best proceed. Do I go ahead and send Net Objects the information they request? I assume they know about this forum, but do I mention I am a participant or not say anything? I have not heard anything else from Getty, but am keeping Oscar as an option since I really do not want to deal with them myself.
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definately send them the info, you don't need to mention this forum, probably doesn't matter.. As for Getty I would reiterate to them that the image in question came within a template of a software package. The distributor of said software package is looking into the issue, and they are not to contact you again regarding this matter and any further contact should be addressed directly to net fusion...
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I sent everything NetObjects requested to them, along with the link Lettered provided to help refresh any memories. Interesting this came up three years ago over the same image, so of course how the NetObjects legal department responds may be significant.
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When you reply to Getty, I would also make it clear that you will begin tracking your time and will invoice for your time when it is discovered that you had every right to use the image.
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I'm still waiting on NetObjects to get back to me with their opinion on ownership and legal use of the image in question. I have not heard anything else from Getty, (and hope I didn't just jinx myself and there will be a letter waiting for me when I get home from work). I also want to hold off contacting Getty until I get an answer from NetObjects. I want to have some definitive answers in hand first.
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Here's an update. I finally heard back from Net Objects. They had referred the matter to web.com, who owned the Net Objects at the time the version of NetObjects Fusion I use came out. They said,
"Your request has been forwarded to web.com and is being handled by their support staff.
In case you receive any further notifications from the image company, please direct these directly to web.com : imageclaim@web.com, attn: Legal Department"
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That looks like you're home free. Congratulations!
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Your or your website designer's change of the image would still be copyright infringement as the right to make derivative works belongs to the copyright holder. I would not stress out very much about the issue as Getty is highly unlikely to target you for lawsuit over this one image. You will hopefully never have to test whether its a fair use or a transformative design.
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A couple things. First the changes to the images Getty is claiming were done by whomever sold the modified image to NetObjects through web.com. I will let web.com's legal department figure that out since they are the ones who included the modified image with their software in the first place. Hopefully they are as fed up with Getty as everyone else.
Second issue is I just received the second letter from Getty. That was a little surprising considering I was under the impression they usually wait several months or longer after sending out the first. I will forward it to web.com as they asked and take it from there. Oscar, I will contact you directly if Getty doesn't give up. My sincere thanks to everyone here for your excellent advice and efforts to fight these scumbags.
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OK keep me posted
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I just received the first McCormack letter, (and felt like I had to wash my hands after just touching it), wanting payment now for $3402.66. Getty originally wanted $2543.88 for only two images, which, as I have pointed out before were combined into one and substantially modified by someone else before they were included in Net Fusion Objects. I forwarded the latest letter to the legal department of Web.com as well as support for Net Fusion Objects. What is annoying is I have not received any response from NFO since July, and still not a peep out of web.com. I'll keep after both since there have been issues with this exact same image before and one would think by now there has been some type of resolution.