Just recived this letter

[neijek]

Hello,

First of all, thank you for keeping this site online and all the great information on it.

My partner (per say as we run a small business website but are not an llc and have not incorporated in any way) just received a letter about 1 image on our shopping cart. They are asking around $1000+ for this image and of course the prompt removal of it while stating that even if we remove it we will still be liable to pay their "fees".

As of now (we received the letter about 8 hours ago) we removed the "offending" image (which they claim was actually a cropped  and modified version of their "stock" image). We have yet to decide what else to do on this case as we are both not very savvy in the legalities and are still doing research.

In this case though we had NOT knowingly infringed on any copyright, further more, our shopping cart was setup using a "template" which we actually purchased (including said image which was a very insignificant but part of said design). What i do not understand is this, why would they try to pressure payment if we removed the image right away, and second why would we be liable for fees if we purchased this image as part of a design from an other company (in good faith)?.

Unfortunately the company that sold this template (it was a large online seller of templates for e-commerce sites) is not online any more, so i can not even ask them to send a copy of their licenses (hoping they had one) as "getty" suggests.

Thank you for your time,

[infringer]

IANAL, but let me try to answer your questions.  These demand letters are a part of Getty's business model.  They've realized that there are a lot of people out there using their images without authorization, so they scour the web to find them and send out bills (they wouldn't make money sending C&Ds).  I like to call it post-delivery sales.  You're liable because the law applies to end-users.  If you can prove that you thought you were licensing the image from a third-party (i.e. with receipts), you may be able to claim innocent infringement, which can substantially lower the amount of damages Getty would receive in court.

[neijek]

Thanks for your reply infringer.

I've been reading a lot more on here since I made this post and I've also been listening to the mp3 files on here.

Personally I removed the image right away, as well as I have the emails showing the purchase of said image. As far as I feel, I am safe. While I know that in the "eye of the law" potentially I am not, as getty says, I have already removed the image and end of story.

If they feel they want to take me to court over it then ok. But I'm sure once they contact me for it, and I show them the above it will not be worth their time.

One question I did have is this, even if the server is in America. And my partner works out of the US. I now live and work in italy. If they where to try to sue, would they have the right to ask me to come back to America, or would they have to try to go through the italian channels as this is not a criminal case, i do not think civil law suits could extend like that.

*edit: further what i do not understand, is who would even try to get money out of a person that bought or got a design (in good faith) and then used it. What jury/judge could ask a small business owner to pay any selttelment in this kind of situation?..

I'm all for slamming a company that makes a profit from ill gotten goods,and continues to do so when informed. But otherwise i don't understand it at all.

[Lettered]

Im no lawyer either, but I understand the Getty situation a bit differently.  I think the point of whether the infringement is willful or not is moot** in many Getty demand letter cases.  This is because a large number (I think even the vast majority) of Getty images aren't registered prior to the infringment.  This means ONLY actual damages can be awarded.  That means no attorney fees and no statutory damages.  From this point there are two positions on potential damages in these cases:

Here's what I think it is:
1) only the fair market license fee for the image in question for the time is was used (subject to 3 year statute of limitations).

This is what it seems to me Getty thinks it is:
2)  the license fee for the image in question for the time it was used, plus extra revenue to cover the cost of running their letter campaign.  I can't find any solid formula for their calculations, but it always seems to me to be more than #1 above.

Note that this applies ONLY to images which weren't registered before infringement (most of Getty stock I think).  Masterfile seems to me to register images much more often than Getty, so a dispute with Masterfile is a different ball game.

** I say moot from a theoretical legal perspective.  I think, however, if you went to court acting like a blatant remorseless willful infringer, it could very much make you less credible in court, and make a court much less likely to want to help you.  Just my opinion.

infringer Wrote:
-------------------------------------------------------
> IANAL, but let me try to answer your questions.
> These demand letters are a part of Getty's
> business model.  They've realized that there are a
> lot of people out there using their images without
> authorization, so they scour the web to find them
> and send out bills (they wouldn't make money
> sending C&Ds).  I like to call it post-delivery
> sales.  You're liable because the law applies to
> end-users.  If you can prove that you thought you
> were licensing the image from a third-party (i.e.
> with receipts), you may be able to claim innocent
> infringement, which can substantially lower the
> amount of damages Getty would receive in court.

[infringer]

I agree, Lettered and I would add that it makes no sense for Getty to pursue a $1000 claim if they can't get attorney fees awarded.

[Lettered]

infringer Wrote:
-------------------------------------------------------
> I agree, Lettered and I would add that it makes no
> sense for Getty to pursue a $1000 claim if they
> can't get attorney fees awarded.


I agree ... very important point for letter recipients over a single image.

[neijek]

Thanks for the replies.. one quick thing.. in this kind of suit. if they did take me to court, there is no jury right? i do not understand the full usa legal department but i have a feeling this would be a case heard infront of a judge only? or would there actually be a jury?

I can not see a jury ever agreeing with a large company over a 2 man little mom e pop kind of company over an image we actually bought as far as we are concerned.

[Lettered]

Just to be clear again, I'm no lawyer and Im just giving my layman's understanding of the issues in most Getty cases:
"guilt" is pretty much a given.  You need to get comfortable with that. Focus on the amount of damages you are liable for.
  Figure out if the image was registered before infringment began. If it's Getty, I doubt it was registered. If it wasn't then attorney fees and statutory damages arent recoverable.  That leaves only actual damages, which in my opinion, is far less than the $1000 to $1400 or so that Getty has asked for a single image violation.  I seriously doubt Getty would take anyone to court in the US for a single unregistered image infringment.  Why not just offer them what you think is just and fair (far less than what they are asking in many cases in my opinion) then forget about it?  I seriously doubt they will accept a reasonable offer, which is OK by me (less money out of my pocket).  Oscar's letter is a good way to do this if you want the added benefit of them ceasing direct contact with you.

[Oscar Michelen]

Neijek:  it would be a jury case if whoever sued wanted to pay the additional fee for a jury case.  The issue here is that it is unlikely that you will be sued for all the reasons set out by lettered and infringer. Please feel free to contact me if you would like a letter to go out on your case.

[Helpi]

"What i do not understand is this, why would they try to pressure payment if we removed the image right away,"

I would guess because they want to be paid for any use of their content ? If they let it be known that it was their business practice to permit unlicensed use of their content up until the moment it is found out and removed it would likely result in routine infringement of their work. Though I'm sure they would argue that routine infringement already exists.

"why would we be liable for fees if we purchased this image as part of a design from an other company (in good faith)?. "

Because (Oscar gives a very good overview elsewhere),  liability for infringement does not depend on whether the infringer knew or had reason to know they were infringing.  This is referred to as "strict liability."  Now on the issue of damages (also explained elsewhere around here) it is very much relevant whether your infringement was knowing or not.  

Finally, you may have a suit to pursue against the person that supplied you the images depending on what they represented to you.  Unlike the copyright claim which can only be litigated in federal court, this other suit, if based on a breach of contract, could be brought in small claims court where you don't need a lawyer and it's much cheaper and quicker (at least the case, collecting not always so easy).  But, again, all of this is one giant hassle given what is at stake.

[Oscar Michelen]

Perfectly stated Helpi!

[neijek]

Thanks guys for all your replies, I've yet to hear back from them, and if i do, or the "case" progresses I will definitely contact Mr Oscar for your services.

Till then, I'm not worried about it any more.

I still feel this is soo wrong on so many levels but I guess that's life .

[Oscar Michelen]

Indeed