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Author Topic: Masterfile threat - should I continue to reply?  (Read 14463 times)

DrSAddison

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Masterfile threat - should I continue to reply?
« on: May 14, 2013, 05:20:22 PM »
Masterfile sent me one of their letters via Fed Ex demanding $3880 for a single image in a blog post on my website.  (I'd found the image through searching Creative Commons licensed photos on either Flickr or Google Images, but of course that's not perfect).

I responded with a letter based on the one here:
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/my-3-year-experience-fighting-back-in-playing-getty%27s-dirty-game/

I requested the following information in my letter via certified mail:

1. Copy of the copyright registration of the image in question.
2. Signed and dated paperwork from the photographer that transfers copyright to Masterfile.
3. Creative image number in the Masterfile library.
4. The date on which Masterfile claims the image entered their library.
5. Sales records, including all fees, of the image.
6. The exact date that the alleged infringement started.
7. A complete accounting of the method in which the amount for settlement demand was determined.
8. The exact number and section of the U.S. Statute(s) which you have relied on in constructing this settlement demand.

They responded via a "registered email," (ha) and of course didn't provide any such info.
---
Dear Dr. Addison:

 

Please see the attached correspondence regarding the unauthorized use of Masterfile’s rights-managed image(s) on your company’s website.  You need to contact me as soon as possible to discuss this serious copyright infringement matter before we proceed with further action.

 

Sincerely,

Michael Hilsheimer
Masterfile Corporation,
Copyright Compliance Officer,
Tel: (416)929-3000 ext. 3096
Fax: (416)929-2104
Toll Free:  (800) 387-9010
E-mail: mhilsheimer@masterfile.com
Web: www.Masterfile.com
---
What they said in their "rescind letter" was this:

Masterfile has already contacted you with instructions to cease and desist using Masterfile’s image in all instances.  Included in the cease and desist letter was a proposal to settle this claim amicably, on a without prejudice basis, prior to litigation, conditioned upon; (a) ceasing and desisting from any and all uses of the image; and (b) paying the retroactive license fee of
$3,880.00 USD.   Although you have removed the image from your website, Masterfile has not received payment for the claims that were attached to our letter. 

As explained in our letter, failure to pay the claim amount would cause us to rescind that retroactive license and initiate a legal action for copyright infringement.  Regrettably, your failure to respect our copyright has left us with no alternative.

Please note that pursuant to the Copyright Act, civil remedies for this infringement include compensatory, statutory and punitive damages, injunctive relief, delivery of destruction of infringing copies, and if litigation is involved, recovery of legal costs. Copyright infringements are subject to statutory damages up to $30,000 per work infringed. 

If you are interested in resolving this matter prior to litigation, you must pay the amount noted in the claim attached to our previous letter.   We expect payment to be made payable to “Masterfile Corporation” immediately.   If you do not comply within five business days from the date of this letter, Masterfile may initiate a lawsuit for copyright infringement or forward this matter for further action without further notice to you.



So here's my question:  I've seen people say they ignored Getty until the statute of limitations expired.  But I'm wondering whether I should pursue this "ignore and wait" approach with Masterfile, or should I continue to send them back variations on my original letter emphasizing "don't contact me again unless you provide this information"? 

I consulted with a friend of a friend who does IP law in my state - he's new to the extortion letter field and was very interested in this site and the letter I sent to the initial demand.  His read was that it was very unlikely that Masterfile would go to the trouble to file suit over a single image, but if further responses from me would be helpful, I want to make them.

Thanks for any input folks have.
« Last Edit: May 14, 2013, 05:50:57 PM by DrSAddison »

Robert Krausankas (BuddhaPi)

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Re: Masterfile threat - should I continue to reply?
« Reply #1 on: May 14, 2013, 08:45:03 PM »
Don't compare Getty to Masterfile, they are completely different beasts...MF are generally much more organized, they do register their images ( or most of them) and they do file more suits..while it is unlikely they would file over 1 image, it's not entirely off the table..You have several options, you can play the back and forth with them, and see if you can go the 3 years, you can hire your "friend of a friend lawyer" or you can utilize Oscars defense letter program.
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

DrSAddison

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Re: Masterfile threat - should I continue to reply?
« Reply #2 on: May 14, 2013, 09:03:34 PM »
What's the validity of these "registered emails" as communications?  Would they stand up in court as notifications?

Should all of my hard copy replies be certified?  Because they have to go to Canada, they're not cheap.

Lettered

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Re: Masterfile threat - should I continue to reply?
« Reply #3 on: May 14, 2013, 09:23:16 PM »
I would think they would be useful for starting the clock on the statute of limitations.  I don't see how the notifications would be significantly important for anything else if it got to court, unless you continued to infringe after the notification which might be seen as blatant and willfull infringement which could affect a damage award.  Why are you worried about the notifications if it goes to court?  You did take the image down, right?

What's the validity of these "registered emails" as communications?  Would they stand up in court as notifications?

Should all of my hard copy replies be certified?  Because they have to go to Canada, they're not cheap.

DrSAddison

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Re: Masterfile threat - should I continue to reply?
« Reply #4 on: May 14, 2013, 09:34:03 PM »
Yes, I took it down immediately based on all the advice I found here and elsewhere.  I know the "respond in five business days" thing is just meant to pressure and frustrate me.  My concern is if I'm trying to frustrate THEM with replies asking for more information, if I don't send things certified mail then they can play the "we never got it!!" game (though my first mail clearly says that they should C&D contact with me unless they answer my questions.)  And whether their email responses would stand up as an appropriate response in court, or are more safely ignored because they're not on paper/trackable.

Lettered

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Re: Masterfile threat - should I continue to reply?
« Reply #5 on: May 15, 2013, 02:25:57 AM »
I still can't see the importance either way.  The bottom line is you're either going to wait out the statute of limitations and see if they sue, or you're going to negotiate a settlement.  With Masterfile, if it were me, I would go with some professional help with Oscar. 

Yes, I took it down immediately based on all the advice I found here and elsewhere.  I know the "respond in five business days" thing is just meant to pressure and frustrate me.  My concern is if I'm trying to frustrate THEM with replies asking for more information, if I don't send things certified mail then they can play the "we never got it!!" game (though my first mail clearly says that they should C&D contact with me unless they answer my questions.)  And whether their email responses would stand up as an appropriate response in court, or are more safely ignored because they're not on paper/trackable.

Robert Krausankas (BuddhaPi)

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Re: Masterfile threat - should I continue to reply?
« Reply #6 on: May 15, 2013, 06:18:42 AM »
In my eyes, there is no such thing as a "registered email", emails do and can get lost in the bit bucket, they can an do last in spam folders and get deleted automatically, ect...hell you might even get "registered" emails from some king in nigeria, this doesn't make them valid.
« Last Edit: May 22, 2013, 05:06:38 PM by Robert Krausankas (BuddhaPi) »
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

DrSAddison

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Re: Masterfile threat - should I continue to reply?
« Reply #7 on: May 22, 2013, 03:29:49 PM »
An update:  I sent Masterfile a second letter, essentially re-stating my request for specific information that would back up their claim of copyright and how they have calculated their demand.  I also explicitly said "do not use email or phone to contact me in the future, or I will consider this harassment."

So of course they emailed me today.

They've halved their demand and are arguing that they answered my questions, which of course they did not.  They're also misusing the term "without prejudice" which is amusing, and are clearly torqued about the existence of this website.  And they're claiming that I'm denying I have an email address, which is absurd - obviously I have an email address, I'm just telling them "don't contact me using email."

I welcome any thoughts from forum members.  I'm considering offering them $1.50, which is the cost of licensing an image from Photalia in perpetuity. 



This is a Registered Email® message from Michael Hilsheimer.

WITHOUT PREJUDICE (For Settlement Purposes Only)

May 22, 2013,

Dear Dr. Addison:

We are in receipt of your e-mail dated May 21, 2013. In response please note the following:

We believe that you are only requesting us to communicate by regular mail as a form of gamesmanship to try to create unnecessary delays in pursuing this copyright infringement matter. Indeed, this has been presented as a clever tactic to use with stock photography agencies like Masterfile on the Extortion Letter website.  We will not comply with your request unless you do not have an email address that you can use or access to a fax machine.  Your email address is [redacted].  Please advise how this address is inaccessible or unusable.

Courts have repeatedly recognized email and faxes as valid methods of communications to reliably convey information. Moreover, we use RPost registered email, which provides legal proof of delivery so that we can ensure that the email reached your servers.  We will continue to use these methods of communication with you, but if you are claiming that you do not have an email address or a fax machine – despite the contradictory information above and receiving an e-mail from you on May 21, 2013 – we will send our communications to you by Federal Express and will hold you responsible for our costs in doing so if we bring an action against your company. If you refuse to accept our Federal Express deliveries, we will present that as evidence of your bad faith in trying to address and resolve this matter.

As per your e-mail requesting answers to the same questions you asked in your April 30, 2013 letter,  I have already answered all these questions and provided all the information and documents supporting our position (Please see May 14, 2013 e-mail) and will not address them again.

The source of ownership of the image is not questionable. The artist agreements, which I provided for you in my May 14, 2013 e-mail, shows that the artist (Darrin Klimak) created the images as a work for hire and that Masterfile owns the rights to the copyright in the image and assert actions for copyright infringement. I also provided you the certificate of registration provided to Masterfile by the Library of Congress United States Copyright Office which states ” This certificate issued under the seal of the Copyright Office in accordance with title 17, United States Code, attests that the registration has been made for the work identified below. The information on this certificate has been made a part of the Copyright Office records”. If you go to the Masterfile website www.masterfile.com and type into the search engine 700-01494609 you will see the image you used appear, at the bottom of the image you will note the photographers name (Masterfile-69) and below that you will see a LEGAL button which when you click on it explains it is a copyrighted image and cannot be used without the consent of Masterfile.

It is undeniable that there was an infringement, which has resulted in a loss to Masterfile.  The image was used on your website. The image was used without authorization – no fees were ever paid to Masterfile. We are now seeking fair, balanced and reasonable compensation for the unauthorized use of our work on your website, a right you did not have.

As a final attempt to resolve this matter in an efficient and amicable manner, without the necessity, risk and expense of litigation Masterfile is willing to settle this matter for One Thousand Nine Hundred Forty United States dollars (US$1,940.00) which is the regular fee for licensing the image had you licensed the image from Masterfile prior to publishing it on your website. Kindly contact us on or before May 29, 2013 with your intentions regarding our offer to settle this matter amicably or we will need to proceed with further action, including referring this matter to our outside counsel and proceeding with an action for copyright infringement.

This e-mail is an attempt to settle this matter amicably and without prejudice. Masterfile reserves all its rights and remedies whether legal or equitable.

Sincerely yours,

Michael Hilsheimer
Masterfile Corporation,
Copyright Compliance Officer,
Tel: (416)929-3000 ext. 3096
Fax: (416)929-2104
Toll Free:  (800) 387-9010
E-mail: mhilsheimer@masterfile.com
Web: www.Masterfile.com

Lettered

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Re: Masterfile threat - should I continue to reply?
« Reply #8 on: May 22, 2013, 04:01:43 PM »
$1.50 is low.  Minimum statutory award for a registered image is $200 .  MF usually has their s__t together.  Again, if it were me, I'd get some help from Oscar on this one. 

Robert Krausankas (BuddhaPi)

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Re: Masterfile threat - should I continue to reply?
« Reply #9 on: May 22, 2013, 05:12:13 PM »
additionally I would not respond to that asshat Michael Hilsheimer from Masterfile via email, if it were me I would simply set-up an email filter to block any emails from Masterfile, send them to the spam folder and also send a rejection notice back to this asshole...an email "reaching your server" means nothing except that..but yeah getting Oscar involved might be a good idea..
Most questions have already been addressed in the forums, get yourself educated before making decisions.

Any advice is strictly that, and anything I may state is based on my opinions, and observations.
Robert Krausankas

I have a few friends around here..

DrSAddison

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Re: Masterfile threat - should I continue to reply?
« Reply #10 on: August 11, 2015, 02:39:02 PM »
Hi - Just as I was starting to hope the clock would run out on this demand from Masterfile, I got a demand from Tyra Hughley Smith of PhotoAttorney (with Carolyn E. Wright) demanding $7,760 (previous demand had dropped down to around $1100 or so).

I sent a version of my previous response, asking for various bits of proof of copyright ownership, calculation of damages, etc. which had always been ignored in the past, but Ms. Hughley Smith did respond with a "Certificate of Registration" for "Group registration of automated database entitled www.masterfile.com", a screen shot of a photo supposedly in that database, and an agreement between Masterfile and a photographer for a photo shoot.  She indicated that the amount demanded had shot up due to getting an attorney involved.  The response also demanded a reply by July 31.

I wrote Oscar's demand letter program that day and asked to enroll, but have not heard back.  I left a message on the 31st, though I couldn't locate voice mailboxes for any of his assistants mentioned on the demand letter page here so I had to leave it in his box directly.  I also emailed Matt on August 5 for help but haven't heard back from anyone.  I left a voice mail in the general message box today.

Further suggestions?  I'd like to just enroll in the demand letter program and get this over with before they really do take the step of filing suit and trying to get attorney fees from me.


The-Gobbler

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Re: Masterfile threat - should I continue to reply?
« Reply #11 on: August 13, 2015, 06:59:10 PM »

I never heard from Oscar either when this happened and ended up paying.  I don't know if that was a good idea or not but it's water under the bridge at this point.

Anyway, just because they are sending you another letter does not mean an actual lawsuit is imminent. They probably just have a reminder pop up every year or so to keep harassment alive. 

DrSAddison

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Re: Masterfile threat - should I continue to reply?
« Reply #12 on: August 13, 2015, 08:02:12 PM »
How much did you wind up paying them?  :(

Looking at the docs she sent me, they don't fully answer my questions, and I'm wondering if the ruling a couple of years ago against bulk registrations is still standing, which would potentially cover me as I'm in California.

Mulligan

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Re: Masterfile threat - should I continue to reply?
« Reply #13 on: August 14, 2015, 11:25:52 AM »
If they had a real case against you that they thought they'd win, wouldn't they have taken you to court two years ago? Perhaps they're taking one last chance at scamming you out of some money before they give up on you and move on to the next gullible victim?

The-Gobbler

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Re: Masterfile threat - should I continue to reply?
« Reply #14 on: August 14, 2015, 03:57:40 PM »

I agree with Mulligan that this is probably just another threat.  I ended up paying about $500.  I was just super paranoid and literally losing sleep over it so it was worth the money at the time.  I would not repeat that again, however.

That said, I did dig up three actual lawsuits (see above) that these bastards have apparently filed over a single image. No information about the case actually proceeding and in each case Oscar is mentioned as having never responded.  Makes me a little nervous about the letter-writing program, but still.

I'm confident enough that I will stand my ground if this ever happens again. Given the fact that images that I've seen sued over are obviously no different than the $65 images Masterfile usually sells, I can't believe anyone would successfully convince a judge otherwise... it's just a joke, really.

However, I'll always be paranoid... in fact, I'm fairly certain these trolls read this forum regularly so I'd be careful about how much personal info I divulge.  You've only got a little time left before you 3 years is up.  Heck, just don't answer the door for a few months and you'll be fine.  In CA lawsuits have to be physically handed to someone - a major pain in the ass that seems relatively easy to kick down the road at least for a few months if that's all you have left.


 

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