My lawyer said I have to pay Getty

[dorim]

Somebody made me a website for my business about three years ago and used several pictures on it. Apparently one belongs to Getty Images. Getty started to write to me about two year ago and I ignored all their snail mail letters, then they got a collection agency in Florida after me; I ignored all those emails too and finally after one particularly threatening email I replied that I did not make the website and had no idea the image was "stolen". Their reply was it does not matter whether I knew the image was stolen or not and I am responsible for paying the $1,000 to Getty.
I looked online and found a lawyer who specializes in copyright law and I phoned him. His advice to me was I do have to pay Getty, I am responsible for the image whether I knew it or not and he said Getty is not required to send me a cease and desist letter. He offered, for $200, to write Getty a letter to see if they will settle for less.
I said no and never contacted this lawyer again. The person who made me the website is long gone so I can't contact him to ask about the image, not that it would help at this point in time.
Needless to say I am disappointed in this lawyer's advice. Another lawyer I met online gave me the exact opposite advice and told me to ignore them and it will end. Who is right? Is there a clearly defined right or wrong way to deal with Getty's hostile tactics?

[Oscar Michelen]

There is no "right" or "Wrong" way to deal with this only because no one case has ever gone to conclusion.   Either the website  user settles or Getty lets it go for a year or so. Our position on this site is clear :  Either the image is copyright registered or it is not.  That is the first step to determine. If Getty will not provide direct proof of registration then I would consider it unregistered.  If the image is registered:  Copyright law allows a federal court to reduce the damages to $200 per image - for innocent infringement.  I have posted some language from federal decisions on this site to show that this is the routine response as courts do not like big companies doing this  to innocent infringers;  so while it is correct to say that innocent infringement is no defense to copyright infringement it is  fact that the party's knowledge plays a critical role on the issue of damages.  So if the image is registered I would recommend offering $200 per image  

If the image is not registered (as is almost always the case) they cannot get statutory damages and legal fees They can only get what the market would pay for the image (their "actual damages") In most cases that would be $49 per image. So offer $100 per image to show good faith and avoid a problem.  

Getty will likely accept neither anyway.

Remember that if these images were placed on other sites by the photographer then you may owe no  money in damages as you could have downloaded it from one of the other sites.

[dorim]

Thank you for your reply.

I have not heard from Getty's collection agency since May so perhaps they have given up on me. I searched the net for the title of the image Getty wants $1,000 for and the same exact image is being offered on allposters.com for $79.  Getty sells the image for $1,000 on their site. Such a huge price difference.

[Oscar Michelen]

I don't think they are going to go after someone for just one image. The info about allposters is good to know as one of our arguments if anyone ever gets brought to court is that "actual damages" should be market value and not Getty's inflated value.

[dorim]

dorim Wrote:
-------------------------------------------------------
> Thank you for your reply.
>
> I have not heard from Getty's collection agency
> since May so perhaps they have given up on me. I
> searched the net for the title of the image Getty
> wants $1,000 for and the same exact image is being
> offered on allposters.com for $79.  Getty sells
> the image for $1,000 on their site. Such a huge
> price difference.


UPDATE: I checked Getty's website and they are no longer offering the image they claim I stole, Allposters.com which had the same image for $79 isn't offering anymore either, but they did leave the title up with a note saying the image is no longer available? I'm thinking this helps my case............

[Oscar Michelen]

Sure, maybe the photographer rescinded the license. It also helps your case to establish that Allposters had the image for $79.00 at one time. Check the latest posts to learn about a class action lawsuit brought by photographers against Getty because Getty was licensing their images for $2.00 per image!

[dorim]

Oscar Michelen Wrote:
-------------------------------------------------------
> Sure, maybe the photographer rescinded the
> license. It also helps your case to establish that
> Allposters had the image for $79.00 at one time.
> Check the latest posts to learn about a class
> action lawsuit brought by photographers against
> Getty because Getty was licensing their images for
> $2.00 per image!


I think its strange that both Getty and Allposters.com suddenly stopped offering this image.  Allposters had the image watermarked, but Getty did not have it watermarked.

[dorim]

I went to Staples today and as I walked down the isle there in front of me was the exact image Getty is billing me for on a framed art print for sale for $29.00! I checked the back of it and its the same name too as the image in question too. So how can Getty expect me to pay $1,000 for an image I can get on a poster for $29?
If the blow up wasn't such poor quality I would have bought it to hang on my wall.  "Made in China" was on the back of the print too along with a sticker saying its a Getty Images print and produced by "Innovative Art" which I think is this site: http://www.portalpub.com. This has to help my case I would think!

[Oscar Michelen]

That's great dorim.  If you bought that poster and took an image of it and put that on your website, you would likely be protected under the "first sale doctrine."

[dorim]

Oscar Michelen Wrote:
-------------------------------------------------------
> That's great dorim.  If you bought that poster and
> took an image of it and put that on your website,
> you would likely be protected under the "first
> sale doctrine."


Would it help me to buy the print now? The reason I didn't buy it yesterday is it was such a poor quality enlargement I knew I would never hang it up anywhere, but if it would help me now I will go back and buy it.
I don't know what First Sale Doctrine is, but I am going to google it now!