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Author Topic: My Letter Policy  (Read 5831 times)

Oscar Michelen

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My Letter Policy
« on: August 29, 2008, 10:16:36 AM »
Dear Readers:

Let me explain what I have been doing and why. I am a seasoned litigator in NYC and was brought into this issue by the founder of this website, who was a publisher that received a Getty Images Letter. He had been handling it on his own until he sought legal counsel. After I answered his question and agreed to send a letter on his behalf, he surmised that many, many others must be in the same position. So he decided to put up a website to address some of the issues. After receiving thousands of hits almost immediately, and hearing people's similar complaints about Getty, we decided to offer something to help out those who are caught in this current dilemma.    

My Fee Policy

I agreed to write a letter for any company that received a demand letter from Getty or their collection agency for the total fee of $150.00US. I also decided that I would include a second letter at no extra cost should Getty respond to the first. Now, I have to tell you that I regularly charge $450.00 per hour for my services in litigation matters. I am routinely retained at that rate by clients on litigation issues. As a result, I now represent many companies at various stages of the Getty Issue. My first letter went out six weeks ago and to date, Getty has not responded. The letter is not a boilerplate form letter. While it does contain some stock language (don't worry I wrote it myself so I own the copyright) it is specifially geared to how the client got the image and used the image.  
   
While Getty has not filed a single lawsuit over this issue, I have also told my clients that I would reduce my hourly rate to $150.00 per hour should Getty sue them and should they decide to retain me as their litigation counsel. I make it clear that they are under no obligation to retain me as litigation counsel and they can terminate my services at any time. Paying the $150 for the letter(s) does not obligate them in any way to pay any further fees to my firm.  

So that is my firm's fee policy on the Getty Issue  

Why am I doing this?


I am doing this because I see it as the only way to level the playing field a little bit. I believe Getty chose the $1,000 per image demand because tht number is high enough to make it enormously profitable to Getty yet low enough that folks who took one or two images would be hard pressed to find competent counsel who could defend the claim. (And as you can see from other posts of mine and others and from my web conversation posted on this site there are defenses). This letter now assures clients that they will not be contacted directly by Getty again and that the fictitious deadline set by Getty has been satisfied. Yes, I gain some "web presence" by doing this and have been introduced to many wonderful and successful entrepreneurs through this issue, but that is just a small bonus compared to the satisfaction of helping out someone needlessly put into distress.

 I can't tell you how great it feels to hear small business owners sighing in relief when they see the letter (a draft of the letter is sent to each client for approval before it is sent to Getty) and know that this is being handled and they can get back to focusing on what they want to focus on. In addition to my practice, I am a law professor at New York Law School which is on the cutting edge of intellectual property and patent law. I teach the first year legal writing and appellate advocacy classes there. I regularly tell my students to be proud to be lawyers as law and the courts are often the only place that individuals and small companies can get a fair shot. And I remind them that it can't always be about the fee, sometimes it has to be about "doing the right thing." So I am also putting my money where my mouth is as well.          
 
My take on Getty

I want to conclude by saying that I am no fan of copyright infringement.  More often, I am on the side of the small company or startup  that puts out content only to have a larger company or rival take its idea and profit off of it. What I am against is hard pressure tactics designed to scare someone into paying a claim and also masquerading a claim as a debt that is in collection. Were I Getty's counsel, I would have recommended a cease and desist letter and then brought a claim only if the party persisted in the use, unless I had proof of an intentional infringement.  I believe this issue may tarnish Getty's reputation in the end.  The company has been for sale for some time now and this may also be a way to show a revenue stream for prospective buyers as less and less people are paying for these types of images. Who knows why they are taking this approach? I only know that it subjects innocent people to undue stress and concern.  I hope that my efforts and this website's efforts help to alleviate that stress somewhat.    

Oscar Michelen

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Re: My Letter Policy
« Reply #1 on: August 29, 2008, 04:20:45 PM »
Oscar,

As the editor of this website, I am truly amazed and inspired by your Letter Policy.  Like you, I have been put in a position where I felt "someone" had to do something over an injustice.  I freely donated my time, energy, and resources in the Cobra Collection Agency Scam case (http://cobracollectionscam.com) and even went on local TV 3 times.  I contacted and met with the District Attorney locally.  I also contacted the Financial Crimes division of the Police Department.  I fielded and interview several dozen people during this time.  I did this because I had the good fortune and expertise to reach out and try to make a difference.  And I was quite successful.  The collection agency was put out of business within 2 months and the owners fled the state to Alaska shortly thereafter.

It is extremely gratifying to me that we have become fast friends and business associates.  I am proud to work and support you in this non-profit effort.  Further, the fact that you are helping so many people through this website makes me happy..  We have hundreds of visitors reading this website each month since it started.  Word appears to be getting out.  And you, Oscar, appear to be the leading recognized expert is this case.  To date, I have found no one close to your stature and credentials representing the "little guys".

It is wonderfully insane that you are charging only $150/hour to help defend people.  You have been a godsend.  It is because of your generosity of spirit and openness, I am proud to be associated with you in this effort.  I get paid nothing for maintaining this website.  All the emails I have been getting have been gracious.  I will have to share some of the kind words people have been submitting to us.

Oscar, thank you for generous Letter Policy.  I believe it is worthy of moving this information to the "front page".  It will happen very soon.
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

gettyvictim120

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Re: My Letter Policy
« Reply #2 on: September 01, 2008, 06:09:54 PM »
Thank you for providing this service! Though my case is now closed, I would have been extremely grateful to have had a letter written in my behalf. I did try to obtain the services of an IP lawyer (or any lawyer willing) and none would touch it. I am not sure why - perhaps the grey areas of copyright law and the relatively small claims. In any event, it is awesome to see someone helping the little guy.

Matthew Chan

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Re: My Letter Policy
« Reply #3 on: September 01, 2008, 07:04:14 PM »
Many IP lawyers are not litigators.  I have found that good litigators know the reality of what ultimately happens with lawsuits whereas non-litigators can only speculate as to the practical outcome.  Oscar has taken the position that there would be damages in many cases.  However, the cost and aggravation of what Getty would have to go through makes actual litigation impractical.

Having been to court myself many times as a plaintiff, I can tell you that things do not often go your direction.  And if they do go your direction, sometimes your "win" isn't always very meaningful or significant.
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

Oscar Michelen

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Re: My Letter Policy
« Reply #4 on: September 02, 2008, 11:08:33 AM »
Dear Getty Victim 120:

Just to add to the last response, it was the size of the claim that led lawyers not to get involved as they could not justify their fees when you could settle for $1,000 or so (and that is what Getty is counting on).  That's the whole purpose of our approach on this site, to try and give folks a way to "level the playing field." Thanks so much for your comments and post.

boxcuber

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Re: My Letter Policy
« Reply #5 on: November 16, 2011, 09:38:34 AM »
Mathew and Oscar -- Thank you so much for your enormous assistance and information! You are providing a great kindness to the masses.

Suppose:
1) I pay Oscar the $195.
2) Oscar sends Getty a first and second letter.
3) Getty does not pursue litigation, at least at that point.

Will Oscar continue to act as my attorney?  In other words, after the second letter, will Oscar continue to act as the contact for Getty and/or Getty’s debt collectors?

Oscar Michelen

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Re: My Letter Policy
« Reply #6 on: November 16, 2011, 03:57:53 PM »
Once Getty receives my letter they can no longer contact you directly and can only contact me. If they decide to sue however, of course the $195 does not cover litigation though you are under no obligation to use my firm for the lawsuit. 

 

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