I was curious if the photographer can "drop charges"? I know, and have read, to not contact them directly but we may have a common friend, actually.
I would suggest that on the balance, it's unwise to contact the photographer at least for now. If you do not know the photographer yourself, the photographer may take precisely the Getty view on infringement. Many photographers vehemently dislike people displaying their photo in any way, shape or form without licensing and will side with Getty on this.
But worse: one of the difficulties for Getty is that they sometimes have flawed contracts. But this is not a problem for the photographer should
s/he decide to sue. So, it is not in your best interest for the photographer to learn details about this issue. You might increase the probability of a suit rather than decrease it. Plus, you could get into a time wasting argument with an actual person, and that's counter productive.
The time to explore whether the photographer would give you an out would be
after Getty actually files a suit (which they probably won't). But even then, it might remain unwise for you to contact the photographer. Or at least think carefully about what you are going to say to the photog if you do eventually decide to contact him. Do you want to suggest you pay him a license-- provided it's dated retroactively? Settle with him directly? And so on? And before doing that, find out for sure how that affects Getty's right to sue. If it doesn't affect it... well... pointless to contact the photog.
What might be better is to do the same things one suggests when Getty contacts you at all:
1) check the US copyright office to figure out if this photographer regularly
registers his photos himself or whether Getty named him specifically in any registration. Many photogs not only do not regularly register their phttp://extortionletterinfo.com/forum/Themes/flagrantly_20g/images/bbc/italicize.gif
hotos but many have never registered
any photos. If this photographer does not register his photos, it's possible that Getty still will also not have done so properly, and the photo will lack registration. (In the past, Getty definitely had flaws registrations relying on trying to get courts to view registration of 'collections' and applying to photos
individually. They now know that method is flawed so it's possible they have remedied this, but if they have, we don't know this yet.) Specifically: if neither the photographer nor Getty registered the photo
before an infringement occurred, the judge cannot and will not levy statutory damages even if the judge finds an infringement happened. This dramatically affects the amount that Getty (and the photographer himself) could possibly collect in a suit. (The US copyright office search tool can be found using google.)
2) See whether this image is heavily used already (by googling.) This would not clear you, but might matter if someone was alleging they lost tons of money due to
your infringement.
3) Try to find out if the image is licensed through multiple venues. (Maybe the photographer sells the images himself? If he does then
Getty may be barred from suing on his behalf. They need to have an exclusive license to sell the images for him-- which means the photographer can't be permitting anyone else to sell them.)
4) Oh.. check whether you only hotlinked (i.e. included html to display an image hosted by some other party)? Or did you host. (Hotlinking is not copying according to the 9th circuit. )
5) Think a bit about whether your use might not have been fair use anyway. ( If it was the top banner of your template... no. But if you were discussing something and it was topical... maybe. Fair use can be a tough argument, but it exists. And Getty-- already unlikely to sue-- is even less likely to do so for cases that might suffer more flaws rather than fewer.)
Put all these in a file, and think about whether the upside and downside potential if Getty did sue.
And all the while: Bear in mind Getty is unlikely to sue over 1 image embedded in a blog post. AND now that they sent you evidence, you know the statute of limitations will close out on the date when that letter is dated.
Whatever you do: don't rush. Avoiding communicating anything to your detriment. (Heck, you don't need to communicate much in your favor if you don't want to do so. So if, for example, you hotlinked, you could either tell them, or just put stuff in your file and laugh everything they threaten to sue you.)
Lucia
Topic: Got my first letter, yay. (Read 7063 times)