knee-jerk reaction and responded to Getty Images

[slamberth]

My client received the "Letter of Demand" today, and I had a knee-jerk reaction out of embarrassment and sent Getty Images an email saying that I was responsible for the image and that I removed it immediately.  I then asked if they.can please provide me a way to make the payment by credit card.  Am I too late, since after doing some research, realized I should have just ignored them?

Now that I calmed down, I'm thinking ,"Why am I paying for such an absurd fee for an image that I received from a download of stock images?"

I will be receiving a response from Getty on directions on how to pay the fee by credit card very soon. I now feel duped.

When they send me the response email, if I was to say, "On second thought, unless you can 1. Provide proof that the copyright is held by Getty and is valid and not expired and 2. show me PRECISELY how you calculated that absurd fee, I'm not going to pay you a dime."... be a proper response or am I just digging myself into a deeper hole? Am I already too late because I already responded and now have to pay a $875 fee for an image whose copyright I thought was cleared?

[Matthew Chan]

Payment has not been made. It is not too late to change your mind.

[slamberth]

Thanks,

They sent me an email on how to pay by credit card so I replied with this email:

Dear Mr. McGrath,

Before payment, for my records and protection as advised by my lawyer, I do need proof of valid ownership of the image and a precise calculation for the claim of $875.

I purchased this image along with other images as a bundle, so I honestly feel I did nothing wrong. As soon as I read your company's letter "claiming" this was thier image, I removed the photo immediately.

I feel a simple "Cease and Desist" letter would have been sufficient, instead your company demanding such a preposterous price for "damages and compensation" without proof of damage is not only pathetic but borderline illegal.

I will not "blindly" pay such an arbitrary sum. The license for the web photo would be $49.00 for 3 months, so as you might guess, feel a bit gouged for such an easy and victimless mistake.

Nor will I be scammed into paying your company for an image they "claim" to have the rights to. Until I receive proof of ownership, your company's "claim" means nothing.

Once the requested information has been provided and reviewed by my lawyer and everything is what your company says is true, I will be more than happy to pay for the amount specified.

I would be more than happy to settle this in a court of law if your company would rather take this case in that direction.

And please understand your company is damaging their reputation with this bulling tactic.

Thank you for your cooperation,

Sincerely,

Shane Lamberth

[SoylentGreen]

I like this letter.

Next, it's very likely that you'll get the form letter that states something to the effect of "We'll reveal our documentation in the court session".  Which actually means that Getty has nothing, as usual.  Just don't reply back to them.  

Any company really intent on going to court wouldn't be so negligent in its duty to protect their content.  Assuming that they even own said content.  In fact, what's to stop you (or anyone else) from paying 50 bucks and copyrighting that image right now?

They're after the "low-hanging fruit".  People who just send money out of fear.

S.

[Oscar Michelen]

Dear Shane:

While I don't think its wise to automatically assume that Getty won't litigate, it is highly unlikely that they will litigate over just one image.  I agree with SG that you should send the letter out, retracting your offer, and await their response.  Please keep us posted

[slamberth]

And here is their reply:

Dear Shane,

Thank you for your email. I appreciate your follow up in this matter. I would like to address your comments and concerns.

Please note that you have commented that you are completely responsible for the image being used.  We are willing to work with you as a courtesy, should you be willing to settle this matter on behalf of Pav & Broome Diamond Jewelers. As the end user of the unlicensed imagery, however, Pav & Broome Diamond Jewelers are ultimately liable for this infringement. Should you be unable or unwilling to settle this matter on behalf of the end user of the unlicensed imagery, we will continue to pursue Pav & Broome Diamond Jewelers in this matter.

Copyright exists upon the moment of creation.  Getty Images represents the photographer who owns the copyright in this image.  Rights Managed images, such as the one at issue, are exclusive to Getty Images and available for license only through our website.  Please find enclosed a watermarked copy of the imagery as evidence of our rights in the same.  Therefore, when copyright infringement occurs, Getty Images is entitled to legal redress.

As exclusive licensor of the images in question, Getty Images is seeking compensation for the unauthorized usage of our represented photographers work. The settlement offer presented to Pav & Broome Diamond Jewelers is based on several factors that include the cost of licensing, and administrative costs related to policing these matters.

Absent the appropriate license surrounding the specific use of the imagery in question, the settlement amount of $875.00, as presented, represents what Getty Images would expect to receive in a matter such as this.

Payment of this amount will serve as full and final settlement of this matter. The terms of this settlement shall be kept confidential, except as may be required by law. Getty Images expressly reserves all rights and remedies available under copyright law. Settlement of the unauthorized use claim does not constitute permission for future use of the imagery.

Please let me know if you wish to settle this matter on behalf of Pav & Broome Diamond Jewelers so that we may proceed accordingly.

Thank you for your continued time and attention to this matter.

Sincerely,

xxxxx

License Compliance Specialist

Why are they saying this is all confidential?

[slamberth]

Although I claim full responsibility for the image and refuse to pay, Getty Images is threatening to go around me and pursue my client because the image was on their site. What to do?

[Oscar Michelen]

Slamberth:

The federal rules say that settlement discussions are not admissible in court and normally settlement agreements in copyright matters are kept confidential. That is standard practice. However, you have not settled with them so you have no obligation to keep anything confidential unless you have already agreed to do so.  If you would like my help in representing you against Getty on this case, you can email me at [email protected]

[SoylentGreen]

Hi All,

The second letter is intentionally misleading.

While copyright exists at the moment of creation, this is not normally enough to collect damages in court.  In any case, this form of "copyright" would exist only for the creator of the image, and not Getty.

Getty must own the copyright to the image in order to sue for damages; it cannot sue for damages on behalf of a third party.

Watermarking an image does not copyright it in any manner.

It's interesting that Getty is unwilling to actually explain the cost breakdown.  The number seems to be purely arbitrary.

S.

[Oscar Michelen]

Hey SG:

Just want to clear up a point you address in your latest post.  Copyright is owned by the author of the material. With photographs, the original author would be the photographer unless the photo was a "Work for hire" then the author would be whoever hired the photographer.  However, the author has the right to   assign r o transfer that right to any third party.  Most of the photographer's agreements that Getty uses contain a complete assignment of rights including an assignment of the right to enforce the copyright the author's own. So, Getty can bring an action if they have such an assignment

[SoylentGreen]

Hi Oscar,

Thanks for the clarification; it's an important point.

S.

[Oscar Michelen]

No problem SG

[flignar]

slamberth Wrote:
-------------------------------------------------------
> Although I claim full responsibility for the image
> and refuse to pay, Getty Images is threatening to
> go around me and pursue my client because the
> image was on their site. What to do?


Was there an answer to this?

[Oscar Michelen]

Many of the folks that hire us for the letter program are web developers retaining us on behalf of their clients. Getty has the right to go after the end user so it is not uncommon for them to take this approach.  If you would like to retain us you can email me at xxx.

[SoylentGreen]

In answer to Flignar's question above, people who retain a lawyer are usually advised not to discuss their issue publicly on a forum such as this.  In addition, a lawyer wouldn't comment on their client's case, unless told to do so by the client.  Furthermore, companies like Getty and their ilk make it a provision of a settlement that any details remain confidential (should that apply here).  Any one of these factors may be why we haven't heard any further details.

S.