Got hit by the letter as well!

[Crying-out-Loud]

Hello all - first of all, thanks to Matthew for setting up this website. I recently got hit by the Extortion Letter. I did follow the advice found on this website by calling them, removing the images and sending them a certified 5 pages letter to make my case.

What I did do, in addition to the basic steps, was to do some of my own investigation. I cannot let it sit if someone accuses me for something they cannot provide any evidence of having exclusive rights for.

Here is what I know about my case:

There is a huge number of companies (100's of google hits) all over the world using the alleged picture, including larger corporations, private investigation companies, copyright compliance companies and even law offices but mostly small business and personal websites. Some with slightly modified version by adding their logos or cropping the image. I don't think any of these companies would 'rent' this image as it is completely overpriced. The only money this picture is generating is through Settlement Demands. (No offense to the photographer, but it is an outdated photograph).   

The photographer did advertise a similar image, meaning the same location & setting, but with the people on it doing a different activity. This was published on the photographers website over 10 years ago.

Apparently the alleged picture was owned by a different company at one time and GI did merge with that company later on. Therefore, the alleged picture may have been available long before GI did acquire the copyrights for it. That’s why they may not be able to give me exclusive copyright information and I may have to ask the photographer directly.

Can it be possible that GI changed the pricing model from available for purchase to a Rights Managed picture just to be able to extort more money? As for the alleged picture in my case this could be possible due to the fact that it is widely used by a very large number of websites.  It is hard to believe they would to that. If they did, it would be interesting to know if this would be allowed by the law. If not, I may have a case against them.

Why would so many companies all over the world knowingly and illegally use this picture if not available through a royalty free CD? My feeling is that this picture was or still is available as royalty free image somewhere out there - I have contacted some of the websites, but to no avail until now.

Additional information: (If the info is incorrect, please feel free to add a comment to this post):

In 1996, PhotoDisc gave customers carte blanche access to download one of the 15,000 high-quality images available through its Web. YOUR photo may have been one of these pictures. Each image came with the standard royalty-free PhotoDisc license that allows unlimited use of the image in printed, multimedia or online materials as long as it's not used in a product for resale.

In September 1997, Getty Images did merge with PhotoDisc. So, the copyrights for some images most likely don’t fall under the Getty Images Copyright as the promotion was before that?

There is a chance they lack of Corporate Governance and may take it for granted that people just pay without checking first. This is why the settlement fee is not high enough for companies to hire an attorney.

Guys, fight for your rights and lets hope that GI makes a few mistakes that can be used against them. I wish that there would be a large Law Firm considering to review cases like mine (pro bono) and if there is a case, go after them - Have them taste their own medicine, but with much, much more bitter taste!

[Oscar Michelen]

We have had a number of large class action lawfirms contact us and look into potential claims against Getty Have not heard back from them. If you can establish that you got your photo from a legitimate source before Getty acquired it Getty will drop the case -its just very hard to prove.

[Crying-out-Loud]

I have received GI reply - final settlement w/o further negotiations - are these letters really final and should one pay and get over it ?

[Robert Krausankas (BuddhaPi)]

Only you can decide whether to pay it or not...my opinion is that whomever pays allows them to win, the more wins they get the more letters they send out. The "final" is just how they operate, they generally send 3 letters, then escalate it to either NCS Recovery ( a collection agency) whom you can tell to go pound salt as it is a claim not a debt, this will force them to throw it back to GI, who will then send it over to McCormack, who is their lawyer...such is the circle of life at GI. You could make a low ball offer ( they'll refuse) but you will at least have record of this, which is helpful.. Oscars letter will go a long way, as it will stop any further communication from them, and it's highly unlikely they will file suit over 1 image, I would seriously consider this option, this way it's out of your hands...

[Crying-out-Loud]

Thanks, buddhapi, your service is highly appreciated and I feel like becoming an activist. The letter doesn't contain the final settlement agreement with the conditions and my question about evidence if they always had the copyright for the image was replied with " Getty Images is not able to provide further evidence at this time ".  For now, I contacted the photographer directly and see what he will tell me.

Not sure if it helps, but their case may have a flaw as the image in question is used by maybe 1000 websites, most of them using the same image / template I did obtain, including law firms who should know better. The image changed ownership over time (from 1998 to date) and it will be difficult to find out who owned the copyrights and when the image was used. The photographer even did advertise a similar image on his own website in 1998.

You mention Oscars letter - how long does it take until he can reply back to them and how much would he charge for sending it?

[Robert Krausankas (BuddhaPi)]

They generally don't supply "evidence" they like to keep you in the dark and scared...truth is a majority of the images are not registered, and they would never be able to collect damages. I'm curious as to what the photog will say in the matter, please keep us posted on the end!

Oscars letter runs 195.00, I can't speak of the time frame, as it would depend on his schedule and also how many other letters he has on his desk at the moment. I know my letter was drafted and sent within a week..

[Crying-out-Loud]

If I hire Oscar, will it just 'Go Away' or will I still have to pay them something? Is there evidence that people actually did not pay at the end? Not sure if playing hardball and threaten them to countersue for lost wages & expenses if this ends up in small claims court. I am getting tired of these clowns.

Also: does it matter if a picture was 'royalty-free' or 'rights-managed' in order for them to be able claim 'actual damages'?

[rd]

My understanding is that small claim only handles indivisuals under $7500. But that may be only in California, or I may be totally wrong.

[Crying-out-Loud]

From the Superior Court where my company resides:
You can use the Small Claims court if you have a dispute with a person, company or government agency involving money. An individual (including a sole proprietorship) cannot ask for more than $7,500.00. Corporations, partnerships, and other entitles cannot ask for more than $5,000.00. You can file as many claims as you want for up to $2,500.00 each during a calendar year. But you can only file 2 claims in a calendar year that ask for more than $2,500.00.

[Robert Krausankas (BuddhaPi)]

Small claims court probably does not apply, this is not a bill you owe, this is a claim, it would need to go to trial of some sort, they wouldn't be filing a claim, they would be filing sa suit, 2 different beasts I believe.
royalty free or rights managed, it would depend on if the image is registered with the US copyright office, this would dictate the amount of damages they could pursue. If it's not registered they cannot collect damages, and the judge would decide what the fair market value would be..

In regards to hiring Oscar, there are no guarantees it will go away, but I can tell you that GI has not filed many suits, and I don't think they have EVER filed suit for 1 image. I can only speak of my case and I retained Oscar to draft my letter, and I have no intention of paying them one single dime..

[Crying-out-Loud]

thanks - your suggestions are very useful. I think my case is straight forward - I am sending an e-mail to Oscar to his gmail account and hope that is the best way for contacting him and to find out what he needs to go forward.

[Canada Bob]

royalty free or rights managed, it would depend on if the image is registered with the US copyright office, this would dictate the amount of damages they could pursue. If it's not registered they cannot collect damages, and the judge would decide what the fair market value would be

Just to clarify, 'rights managed' does not automatically indicate that it is registered, correct?  Both 'royalty free' and 'rights managed' pictures can either be registered or not?

[SoylentGreen]

This is correct, Canada Bob.

Rights-managed means that the price of the image depends upon the terms of the license required, such as where it will be used, how long it will be used, the size and resolution needed, and the type of "exclusivity" desired.

Non rights-managed has a standard license that applies to most types of use, and usually a cheaper flat-rate fee.

Normally, demand letters are sent regarding the rights-managed type images, as the fees are much greater.

S.G.

[Oscar Michelen]

BTW You cannot sue Getty in small claims on a copyright claim. All issues on copyright must be brought in Federal District Court