GI Letter and 30 day preview agreement

[KWR]

I've received my own GI demand letter and I couldn't find anything that references my situation exactly so I thought I would post if for some insight. Last year I decided to launch a website for my 17 year hobby which is now a single member LLC.  As a registered user  of GI you get non-watermarked versions of their catalog they call "Comps" or "Previews" and where you download the comp image there is a smaller print link to review the licensing agreement for "comps" and "previews". In that agreement, it clearly states you are granted a 30 day non-transferable, non-commercial, license. It goes on to indicate that using it over the 30 days you will be invoiced $150 per image. (I'm assuming they came up with that number because the images are lower res than the higher res you would pay for, even in the small format). So I read their agreement, put two of their images into my CMS for sizing and effects testing but after 30 days of that revision took most of the site down for retooling, including the pages they sent me as a screen capture. What Happened?? Apparently, while my Flash admin panel (my site is 100% flash) blocks humans from the pages making them non-public and making me feel I was following their policy... it is not immune to Pic Scout.  Really erks me as an IP creator being accused of the this, but has anybody pushed back on GI because of their comp agreement?

I can tell from the screen shots they sent along with this demand letter it was during the my 30 day window, yet proving that to them is going to be tough because  you don't have a transaction when you download a comp. So as far as they know I had it on the site for years or hours when Pic Scout scanned my site.  What do you think about this "comp" licensing agreement they have and does it apply?
 
Kris

[Jerry Witt (mcfilms)]

I wish more people that are customers (or potential customers) would call Getty, speak to their customer relations or sales departments and raise some hell. Newsflash: This is not how you engender customer loyalty, Getty. Maybe if enough people did this the word would get out to the Extortion (or Demand) Letter department and they would correct their behavior.

If it were me I'd yell at some sales rep and cancel my account.

[Peeved]

I was thinking on the same lines as Mcfilms. What a GREAT WAY to treat your CUSTOMERS! Well as we all know they make more money in the EXTORTION business!

With regard to KWR's statement..............

I can tell from the screen shots they sent along with this demand letter it was during my 30 day window, yet proving that to them is going to be tough because you don't have a transaction when you download a comp. So as far as they know I had it on the site for years or hours when Pic Scout scanned my site. 

My personal opinion with regard to "proving the time frame" is to make THEM PROVE OTHERWISE! Good luck! Check to see if the images in question are "registered" with the Copyright Office. If not....F%&K OFF!

Just my opinion.
 

[Robert Krausankas (BuddhaPi)]

Don't hold back Peeved! 
This is not the first time they have gone after their own customers, and I fear it won't be the last..

I was thinking on the same lines as Mcfilms. What a GREAT WAY to treat your CUSTOMERS! Well as we all know they make more money in the EXTORTION business!

With regard to KWR's statement..............

I can tell from the screen shots they sent along with this demand letter it was during my 30 day window, yet proving that to them is going to be tough because you don't have a transaction when you download a comp. So as far as they know I had it on the site for years or hours when Pic Scout scanned my site. 

My personal opinion with regard to "proving the time frame" is to make THEM PROVE OTHERWISE! Good luck! Check to see if the images in question are "registered" with the Copyright Office. If not....F%&K OFF!

Just my opinion.
 

[KWR]

So I received a response from Getty and in their response they seem to have some boiler plate responses... anyone have any comments on how they handled these?

Please understand that, as exclusive licensor of the images in question, Getty Images is seeking compensation for the unauthorized usage of our represented photographers work. Getty Images’ responsibility to its represented photographers is not only to appropriately license the use of their images to its customers, but to also protect its represented photographer’s intellectual property from unauthorized use and to maintain the exclusive availability of the image through Getty Images.

Below are excerpts from their response:
 
With respect to your comment requesting that we provide proof of Getty Image’s right to manage the images; while this request would seem to be redundant because you have already apparently read the terms and conditions associated with the use of our represented photographers’ work; the author of a work has the right to transfer his exclusive rights to another party.  17 U.S.C. §101.  Those exclusive rights include the ability to license the material, grant permission for its, use and the ability to make and defend claims.  17 U.S.C. §106, 106A.  The authors of these images are the photographers. Getty Images contractually represents the photographers who created these images.  This representation includes the privilege to license their intellectual property and the obligation to protect it from unauthorized use.  Due to confidentiality concerns, we cannot provide you with copies of our contributor contracts, nor are we required to provide them prior to formal discovery requests.

Getty Images does not require its represented photographers to register their works with the US Copyright Office. Copyright exists upon the moment of creation.  Registration is not a requirement of copyright law and only an issue at the time a lawsuit is filed or if statutory damages are being sought.  Getty Images is currently attempting to resolve this matter without litigation and is not seeking statutory damages.  Accordingly, the registration certificate is irrelevant at this time.  The fact remains that the imagery was in use without the proper license and Getty Images continues to seek compensation for the prior unauthorized use. Please find enclosed a watermarked copy of the imagery as evidence of our rights in the same. Therefore, when copyright infringement occurs, Getty Images is entitled to compensation. We are aware of our obligations under the law and civil procedure requirements in filing formal proceedings. Assuming arguendo, registrations are not in place, which is not admitted, nothing prohibits us from obtaining an expedited registration prior to filing suit.

[Matthew Chan]

You are going down the wrong path here. It is way too involved to get into here based on your broad comments.

You might want to consider an ELI Support Call if you want to save time and get down to it.

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

So I received a response from Getty and in their response they seem to have some boiler plate repsonses... anyone have any comments on how they handled these?
 

[Mulligan]

We are aware of our obligations under the law and civil procedure requirements in filing formal proceedings. Assuming arguendo, registrations are not in place, which is not admitted, nothing prohibits us from obtaining an expedited registration prior to filing suit.

Oh, interesting. It seems we're seeing evolution at work as Getty tries to counter ELI's wealth of information as to how to stand up to these copyright trolls. I found especially funny their "We are aware of our obligations under the law" because they also find every way to twist and pervert copyright law to extract ridiculous sums of money from scared people.

Isn't it remarkable how many ways these lawyers can find to pretend they have a copyright registration or a right of exclusivity?

The big point of all this: IF they had the proper documentation, you can be damn sure they'd shove it in your face with these outrageous demands.

My conclusion after dealing extensively with Getty and their outside copyright troll law firms like that of Timothy B. McCormick is that they have nothing but bluster, misrepresentations, and downright lies.

You can put sugar on a turd, but, by golly, it's still a turd, so, copyright trolls, show your cards if you expect to take the pot.

Otherwise, fold and go sulk with your troll buddies who can dish it out but whine like cockroaches snorting Raid when what you're doing is made public.

[Peeved]

So I received a response from Getty and in their response they seem to have some boiler plate repsonses... anyone have any comments on how they handled these?

Please understand that, as exclusive licensor of the images in question, Getty Images is seeking compensation for the unauthorized usage of our represented photographers work. Getty Images’ responsibility to its represented photographers is not only to appropriately license the use of their images to its customers, but to also protect its represented photographer’s intellectual property from unauthorized use and to maintain the exclusive availability of the image through Getty Images.

Below are excerpts from their response:
 
With respect to your comment requesting that we provide proof of Getty Image’s right to manage the images; while this request would seem to be redundant because you have already apparently read the terms and conditions associated with the use of our represented photographers’ work; the author of a work has the right to transfer his exclusive rights to another party.  17 U.S.C. §101.  Those exclusive rights include the ability to license the material, grant permission for its, use and the ability to make and defend claims.  17 U.S.C. §106, 106A.  The authors of these images are the photographers. Getty Images contractually represents the photographers who created these images.  This representation includes the privilege to license their intellectual property and the obligation to protect it from unauthorized use.  Due to confidentiality concerns, we cannot provide you with copies of our contributor contracts, nor are we required to provide them prior to formal discovery requests.

Getty Images does not require its represented photographers to register their works with the US Copyright Office. Copyright exists upon the moment of creation.  Registration is not a requirement of copyright law and only an issue at the time a lawsuit is filed or if statutory damages are being sought.  Getty Images is currently attempting to resolve this matter without litigation and is not seeking statutory damages.  Accordingly, the registration certificate is irrelevant at this time.  The fact remains that the imagery was in use without the proper license and Getty Images continues to seek compensation for the prior unauthorized use. Please find enclosed a watermarked copy of the imagery as evidence of our rights in the same. Therefore, when copyright infringement occurs, Getty Images is entitled to compensation. We are aware of our obligations under the law and civil procedure requirements in filing formal proceedings. Assuming arguendo, registrations are not in place, which is not admitted, nothing prohibits us from obtaining an expedited registration prior to filing suit.

Looks very familiar! lol! Let's see the biggie stands out....

the author of a work has the right to transfer his exclusive rights to another party.  17 U.S.C. §101.

Of course the author of a work has the right to transfer his exclusive rights but the question remains.....DID HE/SHE???

All the other BS is stuff that has been gone over many times. The registrations are required in order to collect "statutory" damages but not "actual damages". etc...etc....

It may be worth more reading here or an Eli Support Call as Matt suggested.

[SoylentGreen]

This is all the same old thing that has been going on for years.
Getty wants money.  Getty says that it has "exclusive rights".  Getty can't prove that it has "exclusive rights"  Getty says that it doesn't "have to prove anything". lol

More misleading info: "nothing prohibits us from obtaining an expedited registration prior to filing suit".
While this is true, registering an image AFTER an infringement has occurred is useless to create "standing to sue", unless the registration is made within 90 days of the first publishing of the image in question.

Getty speaks of "litigation", however such a litigation WILL FAIL without Getty owning the copyright registration or owning "exclusive rights" (see Getty vs. Advernet).
Getty cannot sue over property that it doesn't own, whether it's for "damages" or "statutory damages".
Therefore the copyright registration/ownership of exclusive rights ARE relevant.

But, again, it's the same old thing we've discussed on here for years.
Here's some free advice: don't pay it.

S.G.

[Mulligan]

Good post, SG!

Even at my advanced age, I was unfamiliar with the phrase "Assuming arguendo" and at first thought it had something to do with Argentina, Tango, and perhaps love making requiring strenuous or agile positions.

But then, because I'm now a diligent legal scholar -- thanks for the motivation to learn intellectual property law from the copyright trolls at Getty Images and their outside counsel Timothy B. McCormack -- I visited Wikipedia and learned that...

Arguendo is a Latin legal term meaning for the sake of argument. The phrase "assuming, arguendo, that ..." is used in courtroom settings and academic legal settings to designate provisional and unendorsed assumptions that will be made at the beginning of an argument in order to explore their implications. Making an assumption arguendo allows an attorney to pursue arguments in the alternative without admitting even the slightest possibility that those assumptions could be true. Often, these assumptions would be that the facts or legal arguments endorsed by a hostile party were true.

This seems to me to be more smoke and mirrors and manipulative fear tactics from the largest image company in the world to extract huge payments with an extrajudicial business scheme that's morally worse in my mind than using a gun in the dark of night to rob unarmed victims.

And, like most bullies, Getty Images and its troll Timothy B. McCormack prey on the small and weak. Of course they lack the balls to try to pull this sort of thing on a company that has its own legal department.

In this regard, I almost choked on my upper denture when I first read last year in my initial settlement demand how Getty Images wanted to "amicably settle this dispute between our two companies." Ha, what a freaking laugh that was... the largest image company in the world versus my little mom and pop website.

That may have been my very first "assuming arguendo" moment, and in my ignorance I didn't even know it!

Assuming arguendo does sound sexy, though, doesn't it?

Pass the Viagra.

[Peeved]

Mulligan, I cannot wait to read your expose!

 

[scraggy]

KWR is, in my opinion, incorrect about the $150 being charged if you don’t stop using the image after 30 days. Getty’s own terms state that they charge this $150 UNDER ALL CIRCUMSTANCES! Read on!

Want an image with no watermark?

As far as I am aware, Getty’s “extortion” letters only refer to “Rights Managed” images, and never to “Royalty Free” images. “Rights Managed” images certainly have a higher market value. One would think therefore that Getty would do their utmost to protect their precious commodity, (whose market value could be adversely affected by rampant copying on the Internet).

One such protection is the “GETTY IMAGES” watermark that appears on every image on the Getty website. However, above every image appear the following words – “Want an image with no watermark? Please sign in or register.”

Yes please! Sure sounds like a friendly offer to me!!

Registration is a one-minute procedure, and no details (not even your e-mail address) are verified. Hey Presto! After registering, the image reappears without a watermark. With a right click of the mouse, the image can be saved to your computer. The image is large, of medium resolution, and without any Getty watermark.

One must surely wonder why Getty makes it so very easy to obtain an image without a watermark! How reasonable is it for Getty to sue/threaten for such high sums for copyright infringement, when they themselves do so little to protect their copyright, and almost actively encourage violation. Is this not tantamount to copyright abandonment?

Another option after signing in is to click on “Download preview image” in the pane on the right. A preview image sounds fair enough. For those who click on “view terms of use”  (most don’t), they will find that clause 1 is most reasonable, but clause 3 is absolutely incredible, and I wonder (if I have understood correctly) if it is even legal.

I quote these 2 clauses:

1.   Clause 1. Grant of Licence. Getty Images grants to you, for a period of thirty (30) days, a non-exclusive, non-sublicensable, non-transferable and non-assignable right to use the image and/or film preview file you have selected and any derivatives or copies (collectively, the "Licensed Material"), on your personal computer and, in the case of film, in any test, sample, comp or rough cut evaluation materials. The Licensed Material may only be used in materials for personal, noncommercial use and test or sample use, including comps and layouts.

(I still ask myself why the preview image is without the Getty watermark!)


2.   Clause 3. Rights-Managed Still Fee. For rights-managed still Licensed Material only, if at the end of 30 days you have not licensed the Licensed Material for end use in a final project, you will be invoiced a comp service fee in the amount of one hundred fifty dollars ($150) USD or such other local currency amount as Getty Images may apply from time to time.


If I am not mistaken (and I may well be as the language in such contracts is not always easily understood), then with “rights managed “ still images, whilst you are encouraged to download your “preview” image doing so costs you a minimum $150 under all circumstances!

$150 is the minimum payment even if you don’t decide to use the image in any project!!

However, there is no screen shot warning you of the charge before you download the image. There is no “click here to finalize your purchase”. I don’t know if Getty has ever charged this $150. They could only do so only if someone had already provided their credit card details. What amazes me is that the potential charge is hidden in the “terms of use”, that most of us don’t bother to read.

[Jerry Witt (mcfilms)]

Wow great find. I think your read on this is right. I think every single designer that uses Getty Image pics needs to be made aware of this.

[SoylentGreen]

Wow.  That would be 5 dollars a day.
Imagine if you paid that rate for a whole year... that would be 1825 dollars.
Sounds rather expensive, guys.

S.G.

[Robert Krausankas (BuddhaPi)]

Great research Scraggy!!