ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: CowgirlCaz on August 27, 2012, 11:10:49 AM
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Hi everyone. First I wish to thank you all for the great information that's been constantly provided here in these forum boards. It has not only educated me quite a bit about these Getty extortion letters, but has - on and off (admittedly lol) stopped the panic and fear within me.
I was just perhaps looking for a bit of input here ... I know you may not be able to say much as I live in Canada - but as the saying goes you won't know unless you try.
So I've followed the advice here and asked for proof of ownership for the 1 image that they say they found on my website (unfortunately it was so - I had my website initially created by someone else - of whom is now deceased - however it was a placeholder so I could use my OWN images - which I have done a number of months ago - therefore there are no images on my web server that are not of my own creation). I also requested explanations on how they come to their amount requested.
Of course they refused to give me the proof that I requested but did "explain" the amount being asked. However I notice that within their letter, they're actually not claiming to have ownership rights to the 1 image. Here is what they state:
"The settlement demand we have presented covers more than the cost of lost licensing, alone. A portion of this demand is also a reflection of our administrative costs related to research, policing and our handling of matters such as this. The presented settlement demand is significantly less than what we would expect to recover if this case went to court, but it is in our intentions to resolve this matter before such progression becomes necessary.To clarify our position, Getty Images represents the photographer who owns the copyright in the imagery. This representation includes the privilege to license their intellectual property and the obligation to protect it from unauthorized use, known as copyright infringement. Rights Managed images, such as the one at issue, are exclusive to Getty Images and available for license only through our website.The requested proof that we represent the copyright owner would be made apparent through discovery, should the matter reach the court. We have chosen to try to quickly close unauthorized use cases such as this by avoiding the burden and cost of litigation. As you know, registration is not required with respect to settlement, especially when the damages we seek are based on what Getty Images and its represented photographer have been injured as a result of unauthorized use and now seeks to be made whole. These damages are calculated by the lost licensing fees, including our costs of enforcement. Had you not infringed on our represented photographer’s copyrights, we would not be attempting to recover these fees and the added efforts to pursue this unauthorized use matter. You can confirm that this image is represented by Getty Images by going to www.gettyimages.com and entering the image number. Getty Images is unable to provide further evidence at this time. Absent proof of a valid web license, the balance on the settlement demand presented remains due. The terms of this settlement offer shall be kept confidential, except as may be required by law. Getty Images expressly reserves all rights and remedies available under copyright law. "
Initially they were asking for a whopping $870 for the image - however they dropped it down to $625 ... and of course I have to keep that all "confidential." They've given me til August 31th to pay ... all of that ... in one lump sum of course.
They definitely don't listen to the fact that I don't even make $600 a month - I've tried to tell them that you just can't get blood out of a rock. I did offer them a settlement of what I saw on their site - I used the quote tool for the image and I quoted myself at $210 for a license. And given I don't make much money in a month I likewise requested more time in order to even get that. In this 3rd letter they refused and say that the lowered amount of $625 stands and remains due (I didn't include that in my copy and pasting lol).
So at this point I'm at a loss on what to do next and what to even expect ... especially when they're actually not claiming ownership over the image? All I know is that I most certainly cannot pay that amount ... and for 1 picture - of which I myself didn't even post on the site.
Any thoughts or input would be so greatly appreciated. I'm starting to enter panic mode again - and for a person with anxiety issues as is ... not a good thing.
Thanks so much in advance for hearing this lady's frantic rantings ... and offering any guidance, advice.
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They won't sue over 1 image. You make one "reasonable" offer to pay. If they don't accept, you tell them you are walking away.
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I concur with Matthew, you make an offer that is fair but I would also demand them to provide proof before paying. In one of my letters I told them:
Whether you choose to accept my offer or not I do require that you provide all of the documentation requested providing proof of copyright, contract and sales history. No monies will be paid without full and complete documentation.
Full letter may be found here:
http://www.scribd.com/doc/103914489/1-3-Letter-to-Getty-04-25-12-Redacted
especially in your financial situation I personally would not give them a penny or continue negotiations without proof of claim. Getty has a history of not having their images registered, registered properly or other issues which negate their ability to sue. A classic case is Getty v Advernet were Getty sued over 35 images and won the case by default yet received no monies as the court ruled there is problems with every single image so Getty could not collect any damages.
These are just my opinions and you must do what you feel is best for you and your situation and please keep us posted as to what you decide to do and what happens.
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(http://img31.imageshack.us/img31/8186/warposterfightcopyright.jpg)
S.G.
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SG,
Great poster! We need to have an ELI Art Gallery at some point.
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Are you kidding Matt? That poster should be in the ELI hall of fame. It should be on the ELI masthead.
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That is awesome SG!
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Definitely needs to go on the home page of this website.
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Excellent work, S.G.!
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May i please have express written permission to use this image?? If not I'll just steal it, after all we are all thieves anyway..
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Well done SG! When is the t-shirt going to be available?
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I want a tee shirt, but I want my with BuddhaPi's face instead.
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Thanks guys... it was fun to make.
It's based on an old war poster...
...please enjoy and use as you wish...
(http://img411.imageshack.us/img411/7227/shirtmockup.jpg)
S.G.
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I want a tee shirt, but I want my with BuddhaPi's face instead.
That can be arranged......um Robert?
;D
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I want a tee shirt, but I want my with BuddhaPi's face instead.
That can be arranged......um Robert?
;D
um.........NO....not until you come out with the rest of us
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Don't give SG any ideas, I'll do it.... SG I think your services are required once again ;D
I want a tee shirt, but I want my with BuddhaPi's face instead.
That can be arranged......um Robert?
;D
um.........NO....not until you come out with the rest of us
Who has to come out stinger? He just wants a shirt with your face on it. lol...
;D
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Hi everyone and thank you so much Matthew, SG and Greg for responding.
And indeed I did read about that "flubbed" court case of Getty's a week or so ago when I first came to the forums. LOL!!!
So I have written another response back to them - here is the gist of my letter. If you ask me, if I were on the receiving end of my letter I would consider the situation that of a stalemate really and just simply "give up" and close the "case." But then again I'm a sane and rational and intelligent person .... so who knows:
"I thank you for your response, however I am no further ahead than what I was previously in terms of just who has the proper authority and claim to this image.
I have screenshots of 13 different websites with that image in use. Out of those 13 websites 2 of them offer the image for download – for free. A third website, when approached – it doesn’t publicly display that the image is available for download, but if you pay $10 you are given the link for the image itself (which when clicked apparently it will open up my photo viewer/editor) and I would be able to use the image for as long as I desire. A fourth website is pretty much the same, however the person requested $20 for unlimited usage of the image. I did not approach the remaining 9 websites as already by that time I was confused. Why bother? Both the third and fourth obviously claim rights to the image; as I approached them under the “assumption” that they were the sole copyright owners and requested permission to use their image – this was when the money was requested. I definitely did not go forward with the offers – it isn’t worth it. However ...
Besides also having been available in photobucket, I also found the link to another one of the websites anyways that did have it available for download for free. It was available for download during the month of July of this year – which was when I was able to download the image personally – and did so without issue – as stated for FREE. It seems that it’s unavailable or their server is down as of last night because now, while the image link is in fact still there, the download button for it is not: *link removed* The typing is in Russian, however translated it says “download.” I have included the two screenshots of this website. The first shows a list of all “available photos for download.” The second screenshot is the actual download page for the image itself.
Now in my own case here, as previously mentioned the website was in development – by a web creator – who was the original owner of the site itself. The site was not completely “live” for some time and most areas were not readily accessible to the general public - including the self-help/growth articles. The image in question was most likely inserted into the article by the web creator and owner – as it was stated that the design would include image placeholders so that I could insert my own images when I was comfortable to do so and when I was ready to make that particular area of the website available to the public.
In Canadian copyright law, it states and I quote directly from the Justice Department itself:
27. (1) It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.
Marginal note:Secondary infringement
(2) It is an infringement of copyright for any person to
(a) sell or rent out,
(b) distribute to such an extent as to affect prejudicially the owner of the copyright,
(c) by way of trade distribute, expose or offer for sale or rental, or exhibit in public,
(d) possess for the purpose of doing anything referred to in paragraphs (a) to (c), or
(e) import into Canada for the purpose of doing anything referred to in paragraphs (a) to (c),
Besides the fact that I myself did not ever even use or post the image in question, the image was obviously already placed there when I took over ownership of the site, it likewise was NOT sold or rented out, or distributed to others – and most definitely was not at all exposed/exhibited in public – as it was within an area of the website that was still under development and was not able to be reached by the general public. I have stated this in previous letters. So legally-speaking there hasn't really been any true infringement here. However I also need to state here that your own CEO Mr. Klein has publicly stated on video that he is fine with people taking and using images up to the point that they are actually used to make money – that's where he draws the line - that is even if this particular image in question is actually yours. The image in question, even being that of a temporary placeholder through the development of the website, was not used in any way to generate income. It was inserted in a self-help/growth article for educational purposes only – and as mentioned was a temporary placeholder anyways within an area inaccessible to the public. The article wasn’t even accessible by the public until I made it so – at which time there were absolutely NO images on the webserver that were not of my own creation. All of my photography images were in place throughout the entire website the very second it became live to the public. The web development itself is likewise clearly illustrated within your own “screenshot” of the article (which was included in your previous letter). It shows clearly the old design/layout – and the article itself wasn’t even completely written. This was a placeholder image left by the developer before the site went live and has never been viewed by anyone – nor is it even located anywhere on the server itself. Since this was a placeholder image, placed within an inaccessible/still being written self-help article, and was never live where no one ever saw it nor was it ever used for the live website at any time … that in turn means there are no damages as well.
At this time I do require proof of claim to this particular image, as clearly to me the rights to it are quite blurry due to my experience with and discovery of the other websites. Furthermore, in Canada it is legal to download any copyrighted file as long as it is for non-commercial use, but it is illegal to distribute the copyrighted file – which has not been done not at any time in this case - it was not distributed and was not used commercially. It was used privately. You also imply in your previous letter that I am a corporation by stating that for a license “for corporate or promotional use for a three month term is $396.00.” I am not a corporation – I wish I was! And there is nothing “corporate” about a self-help article – nor was there any promotional usage. Nothing was seen by the public – therefore no promoting or advertising or monetary gain.
I must stand firm in my position at this time and state that until solid proof of your claim is given, I cannot move forward. Should solid proof be shown to me in order to clear up just who exactly has the rights to this image, then as a person of good faith and honesty, even though I personally have not at any time infringed anyone’s copyright - even from a legal standpoint, I will actually "meet in the middle" - or try to here - and stand by a final offer of $275 to be paid by the end of October just to get this chaos away from me ($275 is based on the minimum that would be awarded legally in court of $200, plus $75 to cover your proposed costs to pursue this - which shouldn't even be pursued to begin with). Given my dwindling health, rising healthcare costs, and being a single mother of three with an income that doesn’t even equal your “amended settlement offer” in one month, I cannot nor will not pay anything more than this especially likewise given the facts of this particular situation. So if paying the $275 will allow peace for me then so be it.
I kindly have given you proof of where I was able to acquire the image in question not just for $10 but also for free. It would only be appropriate if you could reciprocate the gesture and please provide to me the Copyright Registration of the image in question, and the signed paperwork of the artist transferring copyright paperwork to Getty. If this information and proof cannot be provided, I request that all communication cease and I will consider this matter closed. Any further communication by Getty Images, their employees, or any other entity that Getty Images may retain will be considered as harassment and will be reported. But as mentioned should this be proven as a legitimate claim by sending me this proof for my clarification purposes for establishing the true claimholder of the image in question, I am willing to pay $275 postmarked by the end of October - which is a more than reasonable and fair offer considering. I am unable to pay anything more than that amount.
I do look forward to receiving the copies of the copyright registration and artist transfer. I do wish to settle this matter."
While I did give a "reasonable settlement offer" ... notice I added that I won't pay a dime until proof is given to me first. Well, we all know that they will NOT provide that proof; they already refused to give that to me in their most recent letter - I doubt that they will bend this time. I think it's safe to likewise say that they will not accept my amended offer either lol. I'd like to know what legal standpoint they have at this point now as well - considering not only my specific situation but also the fact that I found even just 1 website where it was available for free download. I think that I have safely "covered myself" should this go to court - however unlikely that may be. I don't think the judge would look too kindly upon them after all this. Also notice I didn't tell them specifically what websites I found but did include screenshots. What you can't see is that within those screenshots that I gave them - you can't make out the website address! So they'll have to do their own research and work. I'm not doing it for them.
But we shall see what comes next. Most likely just another threatening letter demanding their outrageous "amount due" and once again they'll refuse to provide proof. I won't know what to do after that other than not respond at all. I don't know where I could possibly file a complaint against them up here in Canada. I will keep you posted on what comes next ...
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@CowgirlCaz
I read your letter and I think it is very good the only thing that I would change if it were my letter would be to take out the continued offer a payment of $275. Since you have stated your case and quoted Canadian law showing that you did not violate copyright why would she still offer Getty money? It would be like a police officer pulling you over for running a red light and you proving that the light is yellow and then say how about if I give you half of what the ticket originally was. Again this is just my opinion and you must do what you feel is best for you and your situation but if you feel you still want to offer them the money I would make it contingent on them providing legal proof first.
Please keep us posted.
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@ Greg....
LOL!!!! I didn't look at it from that perspective of course. All I could think about was what Matthew said about having made at least an offer - to show that I was working with them in the unlikely event it did go to court; as it would make them look a bit worse in refusing to work along with me.
LOL! When I read your comment it actually made me choke on my coffee ... I definitely see your point so I've taken it out of the letter and have sent it off.
But like I say we all know they wouldn't accept the offer anyways - and it was indeed in the letter that I wouldn't pay anything until proof was given first ... of which we also know they won't ever provide either. That's why I mentioned if it were me on the receiving end of that letter I would have considered it a bit of a stalemate and just close the "case." But that's too sane and rational for them ...
Will definitely let you know what comes next - although I think we already pretty much know how it will go. ::)
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Hi CowgirlCaz - I'm Canadian and rec'd a letter as well, and am working on my 1st response back to GettyImages. Good to meet another Canadian in the same boat... Will be following your thread here!
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And I agree with Matthew you should make at least one offer that is "reasonable"and I don't consider half reasonable. Look and see what you can find similar images for which are generally anywhere from $2 up to $40 and make them an offer based on that. On Getty's own site I found images similar to the one they claim I had infringed ranging between $10 and $25 so I made them an offer for $75 but also made that contingent upon Getty providing proof they had rights to the image and the money was owed. Since Getty does not provide proof of claims the matter has pretty much stalemated there, yet should Getty ever be so foolish as to try to take me to court I can show I have made good faith efforts to try to resolve the matter with them. Please keep us posted as to how your case goes.
@ Greg....
LOL!!!! I didn't look at it from that perspective of course. All I could think about was what Matthew said about having made at least an offer - to show that I was working with them in the unlikely event it did go to court; as it would make them look a bit worse in refusing to work along with me.
LOL! When I read your comment it actually made me choke on my coffee ... I definitely see your point so I've taken it out of the letter and have sent it off.
But like I say we all know they wouldn't accept the offer anyways - and it was indeed in the letter that I wouldn't pay anything until proof was given first ... of which we also know they won't ever provide either. That's why I mentioned if it were me on the receiving end of that letter I would have considered it a bit of a stalemate and just close the "case." But that's too sane and rational for them ...
Will definitely let you know what comes next - although I think we already pretty much know how it will go. ::)
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Hi Greg and meontheweb.
Well it's been some time - I haven't heard a single word back since I wrote them that last letter - about 2 weeks (generally they get back to me within 2-3 days). So either 1. they're sitting there scratching their heads wondering what the next move should be - especially considering I found a few other websites that offered the image for free download, etc., 2. they decided to give up (which I doubt lol), or 3. They are going to forward it to one of their collection cronies to handle seeing as I'm too intelligent for them. I'm betting on both options 1 and 3 LOL!!!! So it might be only a matter of time before I yet again hear from them ... and definitely Greg I hear what you're saying - that's what my line of thinking was when I wrote all the letters thus far; that if it does go to court it will at least be shown that I tried to work with them and offered a MORE THAN REASONABLE settlement amount. But as Matthew says they most likely won't go to court over 1 image; it has yet to be seen. And personally-speaking, I am wondering how they would in fact argue my points that I made in the most recently letter ... LOL!
It's great to meet a fellow Canadian on here indeed. I wish I could help you more meontheweb, but the best advice I can tell you is to read what I and others have written as well as suggestions made by others in the forum to get a general idea of how to proceed with the letter - But I would quote Canadian copyright law directly, see if you can find the image being offered elsewhere, and as Greg mentioned ask for proof and if they do provide it (which they never do) then you will offer them a REASONABLE settlement amount based on a formula that Greg suggested. This is the 3rd letter now that I have written to them - this time like I say citing Canadian law - as well as outlining my specific "case" ... AGAIN. Even though we're in Canada, I think a lot of the advice that's been given here by everyone definitely pertains to us as well (so far only difference I've seen is if and when it goes to court a minimum settlement awarded for "accidental infringement" by a judge is $500 per infringement as opposed to the US - which is I believe $200).
Will keep everyone posted ... if and when I hear from them again I will immediately let you know!
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Generally when I was corresponding with Getty there was about a 2 to 3 week turnaround time between letters so you should be due for something very shortly. Definitely keep us posted as to what is going on.
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Gee, I think if you found other web sites offering the image for FREE, you should cite that - and offer them exactly that much - $0
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Cowgirl - I doubt you will hear anything further and unless they accept your offer I would not correspond with them anymore.
SG - As usual, your work on that poster is on the money!
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Hi everyone.
Well ... here I find myself once again returning to this great forum. As you can tell from the dates of all our last postings, it has been some time now.
However, I woke up this morning to find a new email from NCS now ... so my question is should I respond to them one final time - outlining all that I wrote to Getty back in July/August (i.e. the sample letters I showed you all back then & my "defense"), or should I completely ignore them?
Thanks everyone for the input. Here I thought I was "in the clear" ... but obviously not lol!
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Hi everyone.
Well ... here I find myself once again returning to this great forum. As you can tell from the dates of all our last postings, it has been some time now.
However, I woke up this morning to find a new email from NCS now ... so my question is should I respond to them one final time - outlining all that I wrote to Getty back in July/August (i.e. the sample letters I showed you all back then & my "defense"), or should I completely ignore them?
Thanks everyone for the input. Here I thought I was "in the clear" ... but obviously not lol!
Respond to them by stating this is a "claim" not a debt and they have no right to contact you. Further that by letting them know if they continue to harass you, you will report them in accordance with the fair debt collection act ( or whatever its called)... poke around the forum, there are threads dealing with this and ncs.
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It's just putting lipstick on a pig. Nothing about the claim has changed and the value of any alleged infringement has not gone up. As Robert states they cannot "put you into collection" and they cannot damage your credit rating or credit report as this is a claim and not a debt. Doing so would violate the Fair Debt Collection Practices Act and NCS knows this so it will not happen.
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Well it took me a bit as I've been feeling under the weather but I wrote back a very short (but to the point) letter to this Darlene Connor of NCS:
We have received your request for payment related to your file #####. Unfortunately I am not aware of any sort of contract or civil judgment in the matter referenced here as it was already previously established that no such infringement occurred due to presented evidence to Getty Images - at which time Getty Images ceased further and all communication. Therefore we are disputing your claim and request for payment. I do not owe Getty any amount of money; therefore there is absolutely no debt to be collected in this instance. As a result, I do request that you please do not contact me again in this matter.
Thank you.
I don't know how much of this I can actually take. It's been one year now from the initial threat letter from Getty. So another 2 years of crap back and forth? Ugh! Anyways I guess it's only a matter of time now before they get their fancy "lawyer" to step in. And I'm just so looking forward to that (not! lol). You would think that they would have given up when I gave them all that info/proof, etc ....
Will keep you posted - whenever I get another letter I'll let you know ;)
P.S.> Oh how nice! I was looking over my past entries for I felt something "wasn't right." In Getty's initial letter they wanted $870 ... then they went down to $625 (?) ... well guess how much NCS is asking for: $950. They just can't stick to one number huh?
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At this point I would send Getty a letter and let them know that if ANYONE contacts you again on this matter you will file complaints with the Attorney General's Office, the BBB, the FTC and your congressman and senator on both Getty and whoever contacted you if other then Getty. I would also let them know it it is Mr McCormack that in addition to the above complaiints you will also file complaints against him with the Washington, Oregon and Idaho Bar Associations. I doubt you will hear anymore from them after that.
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Hi Greg. Thanks for the additional advice ... but ... can a Canadian make those complaints to such departments in the States? Also, I just read in the forums here that NCS actually has illegally contacted me for apparently they cannot do so for claims that are not Canadian. Should have found that BEFORE I wrote them the letter LOL! Oh well ... I know that another letter is most likely to appear so I'll mention it then,
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What I would do, and is becoming popular in the UK to deal with time wasters, is to send a reply clearly stating your position, why you are sure no infringement was committed and state if you have to spend any more time dealing with this you will bill them at $50 per letter and $150 per hour for any research required in formulating a reply.
Should they then contact you again and you have to send a reply send it with an invoice. This then gives you exactly the same leverage that they are using with the exception (here at least) that your claim for money can be dealt with in a small claims court at minimal cost as your claim is not for copyright infringement.
I know some people who have done this (albeit not with copyright infringement claims) and got settlement.
Couch Potato, this is exactly what I did with my dealings with McCormack. Right after that I got notified that "Getty would no longer be pursuing this claim."
I would add that you should also instruct the attorney that is very important for them to share this information with their client. My understanding is that then they are required to report back to Getty that you will be billing for your time to research this claim.
You know, one of the things I did in my case is I told McCormack that I would begin tracking my time. I told them that if they continued to pursue this matter I would be forced to consult with my friend who is a high-priced attorney. I also told them I would be seeking remuneration for these expenses dealing with this issue and it was very important that they pass this information along to their client.
It wasn't long after that I got a call from McCormack's office telling me that Getty woul, "no longer be pursuing this issue."
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Does this really work? I have spent hours on this and would like to know if it's within my rights to charge them for my research, reading, and writing.
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You can try, you won't get anything but they may leave you alone. I know after Jerry Witt did this they left him alone. For me it was filing complaints with several agencies and then they left me alone.
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You'd be surprised how many companies actually pay up to settle out of court if you do take action once you've invoiced them. The cost of sending someone to represent them, even an in-house legal is usually more than the amount you're requesting. Ironically it works on the same basis they use to extract money. The cost of defending is more than you're asking.
I'd only recommend the tactic if you are sure you have committed no infringement though, sent them proof and they continue to harass you. If you've unintentionally infringed I believe Getty would fight any claim on the basis that it could impact their current business model.
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Yes I can only speak from my experience. I don't know if charging for my time or attorney fees to research and reply to their claims would have panned out. However I can tell you that had they continued to hound me I would have tracked my time, met with a legal representative, and submitted an invoice. I'm not sure where it would have gone from there.
If Getty decided to actually file against me I know I would have fought them in court. I would have made sure my lawyer friend racked up a LOT of billable hours in support of me and I'd have filed a counter claim. But I'm glad it didn't go this way because, although although I'm fairly certain I would be vindicated and it would cost them, it would have been a huge time suck for me.
By the way, I think they got a sense from me that I was absolutely willing to go to the mat on this. I think they made a decision that if they dropped the whole thing, I would too. Unfortunately (for them) I found their business model to be so abhorrent I have made it my personal mission to get them to change it.
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CowgirlCaz, it's illegal for collection agencies such as NCS to make non-debts in Canada.
I would complain to the Office of Consumer Affairs:
http://www.ic.gc.ca/eic/site/oca-bc.nsf/eng/h_ca02149.html
Also, I would complain to the Federal Trade Commission in the USA, also:
http://www.ftc.gov/os/statutes/fdcpajump.shtm
Again, it's an illegal practice in Canada, even if the demand comes from the US.
S.G.
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That's some good info, thanks SG!
CowgirlCaz, it's illegal for collection agencies such as NCS to make non-debts in Canada.
I would complain to the Office of Consumer Affairs:
http://www.ic.gc.ca/eic/site/oca-bc.nsf/eng/h_ca02149.html
Also, I would complain to the Federal Trade Commission in the USA, also:
http://www.ftc.gov/os/statutes/fdcpajump.shtm
Again, it's an illegal practice in Canada, even if the demand comes from the US.
S.G.