Image not live, but got a letter...

[Snowbomb]

What is the ruling in regards to receiving a letter for an image which has not been live on a website for about 11 months. The image in question was removed about 11 months ago, but am now receiving a letter. Is it impossible to right a wrong with this whole photo infringement thing?

[Moe Hacken]

Greetings, Snowbomb, welcome to the ELI forum. This is the best place to learn about these annoying extortion letters and how you can deal with them.

The short answer to your question is no, you can't right a wrong or undo the infringement. Obviously you don't need to cease and desist from using the image they claim a copyright for since you already took it down. Since copyright law is a strict liability type of law, the infringement happened and voluntary removal of the work does not erase that fact.

Please do tell us more about your situation and consider sharing the letter with this forum. The important thing to understand is that these people are trying to scare you into sending them a check and they may not even have legal standing. Whether or not they have legal standing, they're not likely to take you to court for one image because it's not worth that much trouble to them. Sending you threatening messages is inexpensive and they hope you'll break down and pay them to make them go away.

The members of this forum can help you sort out your options once the specifics of your case are better understood. It would be of interest to the group to learn who sent you this letter and how they claim they "discovered" the alleged infringement.

[Lettered]

one piece of good news for you, if I am correct, is that you're nearly one third of the way to the statute of limitations already.  Do take the time to read throught the forums, but I think you'll find that it doesnt make sense to worry much about one image.

[stinger]

Lettered may be wrong about the statute of limitations.  I believe that begins when the infringement is found.  If the company in question found out about the infringement recently, through something like archive.org, you may still have the better part of three years ahead of you.

But don't worry.  Moe is spot on.  Read the forum.  Tell us more.  You will put yourself in the position of choosing how you wish to deal with this issue, rather than being bullied through it.

[Lettered]

Lettered may be wrong about the statute of limitations.  I believe that begins when the infringement is found.  If the company in question found out about the infringement recently, through something like archive.org, you may still have the better part of three years ahead of you.

But don't worry.  Moe is spot on.  Read the forum.  Tell us more.  You will put yourself in the position of choosing how you wish to deal with this issue, rather than being bullied through it.

I think it's not straightforward.  It depends on if the court would decide to apply the injury rule or the discovery rule.  Even if the discovery rule applies then "known or should have known" comes into play (you could argue that since it was on a public website they should have known it was there soon after it was put up.  Even if discovery rule is applied strictly by the date they did find it, I think the one year that it was down reduces any "actual damages" calculations.

I don't think it would be fair to let Getty sit on these cases for three years to get the damages up before sending the letter.  I wonder if it would be fruitful to argue that this is exactly what Getty is doing?  Are there any cases where someone recieves a letter on an image that's been up for just a month or two?

 Not sure how much of a stretch any of the above is , but it sounds reasonable to me.

So I think that the extra time down makes him a harder target (not that he was a soft target at all with just one image), but, point taken . . . champagne uncorking is probably 3 years from letter date just to be safe.

[Robert Krausankas (BuddhaPi)]

I've seen a few examples of people getting letters when the image was only there for a couple of weeks.. It's fairly clear to me, that they saw this on either domaintools.com or archive.org, by pulling up the cached version...IMHO this would be very simple to defeat in court ( not that it will ever get there ) Heres how i would argue it...

yes sure they have a screen shot of the archived page showing the image....now show me the code that has the path to the image in question.... It would be like Timothy B McCormack sending me a letter because i have his image on copyright-trolls.com, but the truth of the matter is the image is NOT on my server, it's being pulled from his own site ( as in linking )..therefore no infringement.. the whole screen capture thing that Getty supplies is in NO WAY proof of anything excpt that the image "appears"...just another part of the scare tactics used..."look you're busted we hav an image of such!!

In the last letter we have from HAN and Attorney Street you can plainly see that they are supplying the actual path of the image as well as the screen capture.. It would behoove all interested to request archive.org remove your cached copies...