I need advice on this Masterfile claim please

[xsubmariner]

Hello all,
Any advice would be helpful on this. I am going to try and throw out as much info as possible, so if anyone has specific questions that might clarify the situation...please let me know. I will check this board regularly.

1. May/2011 received 'standard' letter from masterfile. 1 small image on a secondary page of personally owned(and developed), small business commercial  website. Their 'settlement offer' was about $4,500.

2. June/2011 received email from them rescinding 'retroactive license' offer. Demanding payment in full. Sent email to Oscar on June 11th. He responded that he would follow up the following Monday. I didn't receive the follow-up so I continued to wait.

3.  August/2011 received letter from NCS collections. "Demanding" the settlement of the original offer of $4,500. Emailed Oscar again explaining the escalated situation, and requesting his services. I offered payment to him for writing a letter to masterfile. I haven't heard back from him at this point. I also left a voice mail for him this same day. (I apologized for trying to use different ways to track him down, but I had no idea if my emails were going to spam or something at that point...so I thought 'sitting and waiting' to hear from someone that doesn't know you exist...might not be my best option.)
4. Sept/2011 received another letter from NCS demanding original settlement amount. Also received a 1st email from NCS offering to discuss settlement at a "discount rate" if I act immediately.


Side notes:
1. Masterfile is claiming use of the one image on 2 of my websites, but one of them is simply domain forwarding (where you type in the www address and it brings you to another site). Does this change anything? Meaning would it be seen as only 1 "infringement" if it were indeed infringed on at all?
2. The image in question is about 58KB. The 'original' that masterfile claims ownership to on their site is about 800KB
3. The image in question was removed immediately upon receipt of initial letter.
4. The image in question was altered in some way apparently. Half of the picture is the image they claim ownership of, the other half is related to my business. (Its an odd question..but...is it now only infringement on 50% of 1 image?)
5. I originally found the image in question in a google search, and then used it.
6. I have made no contact with masterfile or NCS.
7. I talked to an attorney in Canada at some point during this (after unable to contact Oscar). He said masterfile usually will settle for about $800, and he could write a letter for me if I need, at the price of about $300.
8. I talked to my insurance agent about this. They need more info from me to make final decision. ( I am scared my rates will skyrocket if I get them involved.) He said there may be coverage for this on my policy depending on a number of factors. (When I started using the photo (before or after the policy went into existence), how long you used it and where you got it originally) FYI...my policy was in effect long before the site went up.

Have I left anything out that anyone would find pertinent?

Thanks so much!

[classaction01]

Here is an advice for you. DO NOTHING. SUE OSCAR FOR MALPRACTICE if Masterfile sues you.

There are at least 3 others like you in this forum whose letter was never sent. You should have never hired this man and paid him any money. He sounds unable and only cares about taking your $200 (sales gimmick $195 LOL)

Write your own letters. You can write can't you? Read what he wrote on this site and form an intelligent negotiation strategy. If you are smart you will never pay them anything because they will never accept any of your offers anyway.

Remember that those images you copied from Google, you can buy from iStockPhoto.com or Pond5.com for $2-$3. By the same, I mean not materially different.

Don't be dumb, sacred, intimidated, or PARANOID!. Don't pay them $800 per image. Offer $200, and don’t worry, you will never need to pay that either because they will never accept that offer. It is their loss.

If you wish to respond to NCS, tell the NCS that you dispute the claim and will only discuss the matter with Masterfile. Then tell Masterfile that you will pay $200 per image. You will not go to court. Don't worry. They send thousands of these letters per year. The probability of you going to court is very very small. MOST OF ALL DONT WASTE YOUR NERVES AND TIME ON THIS.

Ignoring everything is also a good option despite what Oscar or few other paranoid people here will tell you. The less attention you draw to yourself the better. There are some people who only made their situation worse by talking to Masterfile. They were dumb enough to admit that they wilfully took their images. Don't do that! Oscar will not bring down the Masterfile cost to less than $800. If you hire him, you run a risk of getting sued if Masterfile ever decides to sue "John Doe" and all those who didn't pay and are represented by Oscar Michelen.

Follow my advice unless you are willing to spend $800 on it. Ask Oscar for a refund since he had never sent a letter for you. This way it will not cost you any money. It is enough that you had to waste your time and nerves on this!

There are thousands like you. Hundreds of them never paid, most of those who never paid never responded.

Now watch all those paranoid people criticize what i wrote LOL.

[Jerry Witt (mcfilms)]

Oh I know who this is...

Anyway, if you go back and re-read the original post, you will learn that the O.P. did NOT pay Oscar. He offered to pay him next Monday.

I agree with you that most people should just write their own letters. I know Matt has said as much, too. But coming into Matt's "house" and throwing around false accusations about someone Matt counts as a friend is just plain rude. I'm not sure what your beef with Oscar is, but seriously, is there any chance you might try a little more constructive path?

[xsubmariner]

So far in terms of responses to my request for help...I have one person slamming a moderator, and another person, slamming the slammer.

Does anyone have any actual advice on this? Oscar doesnt return calls or emails, 130 or so people have read this, but no one has anything to add.

I am not sure why I even bothered. isnt the goal of this forum to share advice and help beat these b@stards back?

[SoylentGreen]

Sometimes, posts slip by, I think.
I'd be happy to offer some thoughts shortly.

S.G.

[Robert Krausankas (BuddhaPi)]

I believe MF is a little different than GI in terms of the letter campaign, MF will show proof, MF does register their images, so it may not be a simple as this.

You need to understand Oscar does not generally return phone calls, he also recieves massive amounts of emails, that he needs to sift thru daily, maybe your got missed. If you want to retain Oscar, you will need to do the following.

have all paperwork thats was sent to you at the ready, call his office and DO NOT leave a message, get his assistant on the phone, explain you want to retain Oscar, give him the background of your case ( as it might be a different ballgame with MF) , give them your payment info then fax your paperwork to them.

If MF is different they will tell you this up front, so you can make a decision as to whether you want to retain him.. In the meantime notify NCS that you are refuting this "claim", it is not a bill and legally they cannot hound you, they have to send it back to MF.

Hope this helps..

FYI: I did exactly this, called the office payed, faxed the paperwork and had my letter drafted and back to me in 1 week. granted this was a while ago, and there are alot more cases on oscar desk, but he will not take your money and not perform.

[Bekka]

Well it certainly makes one wonder doesn't it?  I have filed a petition on this issue expecting the numerous US followers of this forum to sign and support it and so far only two people here besides myself have registered and signed.  

As far as Masterfile goes, who really knows what do to, since most of the issues here involve Getty.  I have a Masterfile case pending as well and have written them a letter asking for their proof and denied all liability. So far they have responded by email both times and have reduced the original amount for one photo down to about half.  It is still far more than I can afford to pay or even willing to pay.  However, my best non-lawyer advice is to make them an offer so if it does come to court (Masterfile files more court cases than Getty), at least the judge will know that you did not ignore the issue and tried to settle reasonably.

Good luck!
Bekka

[SoylentGreen]

To answer your questions; each “impression” of an image on the web or in print counts as one infringement.
Because you used a low-res version of the original photo, that would decrease the amount of your damages in a court case.
The fact that you removed the image shows “goodwill”, however, MF will still want to be paid for the past usage.
If the image was altered so much as to be “unrecognizable”, then you might have a defence based on the alteration, but 50% is not normally enough.
Try to avoid mentioning that you grabbed the image off of Google.
  
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For those who don’t want to settle, a big part of all this is the waiting game.  What some do is “wait” and see if a lawsuit is filed.
If no lawsuit is filed within three years, you’re home free.
If a suit is filed, some settle at that stage (you’ll have less negotiating power, though), others wait to see if MF backs out of court (you’re probably home free)
Others actually go to court and fight.  Some present an informal form of defence before a suit is filed.

Lawsuits are cheap to file, and are often used as an intimidation tactic.  It’s a good idea to have a defence prepared which would make you appear to be a difficult target.
This could make the plaintiff move on to other “softer targets”, although you’ll be harassed a bit for a period of time regardless.
If you decide to use such a tactic, you might choose to reveal it before a lawsuit is filed in order to deter them from filing suit.
Once a lawsuit is filed, you may still use your defence, but it becomes more laborious and stressful.

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The following could work in both Canada and the US, I think:

I wouldn’t doubt that MF has stated that it has an “exclusive agreement” that assigns the rights of the artist to MF
This usually includes the right to litigate and collect monies in the event of an infringement.  

As many of us know, the retail price of the image isn’t of the utmost concern.
“Statutory damages” are often of the most concern; these damages might include a multiple of the purchase price as a deterrent, and legal fees for the plaintiff.

The ability to collect statutory damages is dependent on the proper registration of the image with the copyright office.
You should search the online copyright database for entries by the artist in question.  In Canada:

http://www.ic.gc.ca/app/opic-cipo/cpyrghts/dsplySrch.do?lang=eng

If it appears that the artist hasn’t copyrighted his/her image, this means that the artist could not enjoy the benefits of statutory damages because he/she failed to copyright the image.
Therefore, if the artist couldn’t have collected statutory damages himself, he wouldn’t have been able to transfer such rights to MF even in an exclusive agreement.
I feel that even if MF was to prevail in court in a case like this (given the above conditions), they could only collect the retail purchase price of the image.
No legal fees, or any other damages “to act as a deterrent”.  If met with these facts, it could be sufficient to cause them to back off in some cases.

In short, if the retail price was 800 dollars each, they wouldn't spend $6000 on court costs to recover $1600.  That would be a net loss of $4400 dollars for MF.

Although MF may claim that they’ve copyrighted the image, this would be at odds with a statement that the artist owns copyright and has transferred the rights to MF.
Keep in mind also that copyrighting the image after the infringement may not be of help in most cases.
In the US, the artist has an opportunity to copyright the image within 90 days after first publication.  But, that’s as far as “retroactivity” goes as far as I know.

….

Some important points to keep in mind here.  Oscar is a US attorney; I doubt that he could get “formally” involved in a Canadian matter, although that would be great.
Lawyers don’t do much for free, unfortunately.  Even consultations cost between 100 to 200 dollars.
Their “advice” will often be quite “conservative” and it may not be what you want to hear.  They can’t promise anything, unless it’s a “slam-dunk” case.
That might change if you hire them, and express your desire to fight, and also state what your risk tolerance is.
Personally, I don’t answer posts here if the issue has been brought up in a previous post.
The questions about collections have come up numerous times, and have been answered, for example.
Sometimes, I’ll post if I can come up with a strategy like the one above.

Good luck.

S.G.