My proposed Getty letter response and settlement offer

[timtime]

A LITTLE BACKGROUND:
===========================
Last week I received my very own Getty extortion letter. It is dated April 26, 2012, and the letter alleges copyright infringement of a single image on my company website. The screenshot they include shows their image displayed at a resolution of about 180 x 180 px in the right nav, below-the-fold, on a secondary page of my company website.

Below is the alleged image as it appears in the Getty Images gallery and my proposed response to the letter. I would love the community's feedback on the response. Is there anything I write that I shouldn't? Is there anything I should add to the letter?

As you can probably tell from the contents of the letter, I've spent the past few days reading the forums and watching the ELI videos. One thing I haven't found, however, is a community vetted, legally safe and sound, sensible reply to the Getty letter.

I know there is no possibility of creating a one-size-fits-all reply as each case is different. Nonetheless, I hope that this thread will grow to provide the foundation for other Getty letter recipients to build upon. Thank you all, in advance, for you feedback!

As I fully expect Getty to reject my reasonable offer, I just contributed my proposed settlement amount to ELI! 


THE ALLEGEDLY INFRINGING IMAGE:
===========================
Getty Image No. 200133214-001 (The Image Bank collection)
http://www.gettyimages.com/Search/Search.aspx?contractUrl=2&language=en-US&family=creative&assetType=image&excludenudity=true&p=200133214


MY PROPOSED RESPONSE LETTER:
===========================
May 7, 2012

Copyright Compliance Team
Getty Images Inc.
PO Box 84434
Seattle, WA 98124-5734

Getty Case Number: <<MY_CASE_NUMBER>>

To Whom It May Concern:

Thank you for your letter dated April 26, 2012 notifying <<MY_COMPANY>> that its website <<MY_COMPANY_WEBSITE>> may be in violation of an image copyright allegedly represented by Getty Images (The Image). To clarifiy, the website <<MY_COMPANY_WEBSITE>> is wholly owned and operated by <<MY_COMPANY>>, a <<MY_US_STATE>> corporation of which I am the founder and sole employee.

I assure you that if the alleged copyright infringement did take place, that it was entirely innocent and unwilling. As a good-faith gesture, and until this matter is definitively resolved, I have removed The Image entirely from the <<MY_COMPANY_WEBSITE>> website and, while admitting no guilt or wrongdoing but to close this matter, am prepared to make a reasonable compensation offer based upon well established stock photo market conditions.

The fair market price for an unremarkable photo of a single lawn sprinkler with no models or architectural features represented is well established at between $1.38 and $5.01. Your subsidiary iStockphoto has dozens of nearly identical lawn sprinkler photos offered at a price of between $1.38 and $1.67 for the “Xsmall (425 x 282 px)” size, which is nearly four-times as large as the lawn sprinkler photo displayed in your screenshot of the <<MY_COMPANY_WEBSITE>> web page where the alleged infringement occured.

Some of the functionally identical lawn sprinkler photo matches from your subsidiary, iStockphoto:

• “Grass sprinkler” (available on iStockphoto for 1 credit or $1.67):
  http://www.istockphoto.com/stock-photo-3740765-grass-sprinkler.php
• “Water Sprinkler Head Spraying New Grass” (available on iStockphoto for 1 credit or $1.67):
  http://www.istockphoto.com/stock-photo-17115770-water-sprinkler-head-spraying-new-grass.php
• “Lawn Sprinkler” (available on iStockphoto for 1 credit or $1.67):
  http://www.istockphoto.com/stock-photo-602038-lawn-sprinkler.php
• “Sprinkler Head” (available on iStockphoto for 1 credit or $1.67):
  http://www.istockphoto.com/stock-photo-6774200-sprinker-head.php
• “Water Sprinkler” (available on iStockphoto for 3 credits or $5.01):
  http://www.istockphoto.com/stock-photo-6505376-water-sprinkler.php
• “Lawn Sprinkler” (available on iStockphoto for 3 credits or $5.01):
  http://www.istockphoto.com/stock-photo-799531-lawn-sprinkler.php
• “Sprinkler” (available on iStockphoto for 3 credits or $5.01):
  http://www.istockphoto.com/stock-photo-10114512-sprinkler.php

A quick web search identifies a number of comparable photos offered at similar prices by other prominent stock photo websites Bigstock, Pond5 and Shutterstock:

• “Grass Sprinkler” (available on Bigstock for $2.99):
  http://www.bigstockphoto.com/image-2070272/stock-photo-grass-sprinkler
• “Sprinkler watering green grass for nature growth background” (available on Pond5 for $1.00)
  http://www.pond5.com/photo/4478305/sprinkler-watering-green-grass-for-nature-growth-background.html
• “Photo of a Lawn Sprinkler” (available on Shutterstock for as low as $0.32):
  http://www.shutterstock.com/cat.mhtml?searchterm=lawn+sprinkler&x=0&y=0&search_group=&lang=en&search_source=search_form#id=33917434

Based upon hundreds of easy to identify comparables, I calculate the fair market price for an extra small, unremarkable lawn sprinkler image to be precisely $1.67. Even prior to determining if the alleged infringement actually occurred, I am willing to offer Getty Images $33.40, or 20-times the fair market price of the image, just to amicably and expeditiously close this matter for both Getty Images and <<MY_COMPANY>>.

Needless to say, your $720 settlement demand amount for the alleged infringement -- which is over 431-times the fair market price -- is ridiculously exorbitant based upon overwhelming market conditions, including the 1,607 “lawn sprinkler” image results from your own subsidiary, iStockphoto.

If you chose to reject the above offer, I ask that you provide the following information to establish your rights to The Image and to further support your settlement demand amount:

• Please provide proof of Getty Image’s right to manage The Image.
• Please provide proof of proper copyright registration and the chain of title for The Image.
• Please establish Getty Image’s specific claims as to the duration of the alleged infringement. <<MY_COMPANY_WEBSITE>> is composed of dynamic, frequently changing pages. In a month, a typical page can cycle through 2 to 10 iterations, with many changes responding to documented major and minor Google search algorithm changes, and each with vastly different page text and imagery. Because of this, a "start" date and "end" date to the alleged infringement does not imply that the alleged infringement was live for the full period between the "start" and "end" date.
• Please clearly establish the market value of The Image in Getty Image’s estimation. Please provide sales data of The Image at that price point and at the extra-small size for placement on a secondary page, below-the-fold.
• Please detail your calculation of this case’s share of the “costs incurred related to the pursuit of the unlicensed use”.

If you chose to reject my reasonable offer of settlement, I will expect and require the above information before proceeding further. As well, upon your rejection and if warranted, I will gladly retain legal counsel experienced in US copyright law to help us resolve this matter fairly.

Thank you again for notifying <<MY_COMPANY>> of this alleged infringement. Personally, I am a long-time user and admirer of iStockphoto.com, and even an approved photographic contributor to that site. As a content creator, I respect and appreciate the importance of the fair and reasonable application of US copyright law.

I hope you find my settlement offer adequate to close this matter prior to both parties investing more time and resources to determine if the alleged innocent infringement did indeed happen.

Sincerely,


<<MY_FULL_NAME>>

<<MY_COMPANY>>
<<MY_COMPANY_ADDRESS>>
<<MY_COMPANY_PHONE_NUMBER>>
<<MY_COMPANY_SUPPORT_EMAIL_ADDRESS>>

This letter is sent pursuant to Federal Rule of Evidence 408

[Jerry Witt (mcfilms)]

I received your PM and I am glad to see you did exactly what I hoped you would do (before you even got my reply). Thank you for posting this publicly. If more people had the guts to step up and do this, there would be far fewer victims that just roll over.

Your letter is a great example of the research and effort someone should undertake to fight these extortion letters. It can serve as a guide for anyone else faced with a similar claim.

It takes courage to publicly speak out against something like this. But only by enough people getting vocal about these copyright trolls will the policy ever change. Since you are both a stock footage vendor and customer, I think some sort of dig about no longer doing business with companies that threaten to sue their customers is appropriate. I have made it my mission to inform as many web developers, graphic artists and video producers about the practice of GI, MF and HAN. I also don't fail to mention that even a purchase from iStockPhoto (owned by Getty), contributes to copyright trolling. And then I point them to freelance photographers and the resources I have collected at: http://www.extortionletterinfo.com/forum/getty-images-letter-forum/list-of-public-domain-stock-footage-companies/

Anyway, good luck and welcome to the club.

[Lettered]

I'm no lawyer, but I really like that letter!  One very minor point is a typo I noticed:

"If you chose" should read "If you choose".

[Robert Krausankas (BuddhaPi)]

I could not agree with MC more on the point of stepping out of the shadows and being vocal about these letters, by rolling over and paying or staying silent, just helps fuel the furnace and the more will get burned!

There are some compelling points to this response. Not only do I find it utterly amazing that Getty Images would go after one of their "approved contributors" and apparently a long time customer, I also find it appalling that they can even think they can demand 700.00+ for an image of a sprinkler head! and to boot an image that they seem to have 100's of available as royalty free images. Any judge would have to be blind as a bat to not see this image as being worth next to nothing, Rights managed or not.

I predict that will be included in the next letter, "this is a rights managed" images therefore it is worth more..what a croc!

[Matthew Chan]

I would say it is a very good response letter.  I think throwing all the comparable market prices of photos of the sprinkler head is a nice touch.

The reason why we have never "endorsed" a letter is because the letter itself is meaningless without the commitment behind it.  There are 2 big reasons for issuing a response.  #1. Cover yourself that you acknowledged and made a good faith effort to resolve it.  #2. Get them to stop sending the letter.

I would say that 80%-90% of letter recipients fail to understand point #2 and using a form letter does nothing to ultimately stop the collection letters. The reason why is because the collection clerks see that as a "lazy" way to respond and once you get past the form letter, then what?  What kind of person or commitment is behind the form letter? If it were me, I would go find out. If you represent yourself, a custom-written letter will generally go further than simply slapping your name to a letter that is out on the Internet because it rings as hollow.

That is why I have no problems sharing my letter. If someone is dumb enough to blindly use my letter without customizing it or get their inner resolve set, they will be greatly disappointed in the results.

Even a checklist of items to include in a letter doesn't mean too much because they now dismiss it.  You include it as a formality, not so they will actually follow it (which they won't). The true strength is how you come across in your letter.  Take Oscar Michelen's or my letters.  Some people think that our letters are effective because we discovered or came up with some magical prose to stop the extortion letters.  Actually, they stop them because of the people writing the letters. They get a sense of the person writing the letter and their commitment level.

Getty and their friends always go after low-hanging fruit such as those who are "reasonable", "respectful", continue to respond back endlessly, or people who they feel are bluffing.

As you know, they will turn down your offer. The true test (which is one that seems to bother so many people), is whether you can endure, cope, and respond to the follow-up letters.

Your response letter is fine.  Get ready for another letter within 4 weeks.

Below is the alleged image as it appears in the Getty Images gallery and my proposed response to the letter. I would love the community's feedback on the response. Is there anything I write that I shouldn't? Is there anything I should add to the letter?

As you can probably tell from the contents of the letter, I've spent the past few days reading the forums and watching the ELI videos. One thing I haven't found, however, is a community vetted, legally safe and sound, sensible reply to the Getty letter.

I know there is no possibility of creating a one-size-fits-all reply as each case is different. Nonetheless, I hope that this thread will grow to provide the foundation for other Getty letter recipients to build upon. Thank you all, in advance, for you feedback!

As I fully expect Getty to reject my reasonable offer, I just contributed my proposed settlement amount to ELI! 

[Peeved]

Getty and their friends always go after low-hanging fruit such as those who are "reasonable", "respectful", continue to respond back endlessly, or people who they feel are bluffing.

My peaches must be hanging low as of late. It must be time to invest in a new bra.
 

On a serious note, YES get ready for another reply to your response letter. It will undoubtedly come via email to save time and money, I'm betting on within a week time frame.

They will give you the typical bs such as "Due to confidentiality concerns, we cannot provide you with copies of our contributor contracts, nor are we required to provide them prior to formal discovery requests."

With regard to pricing, they will tell you this, "Our demand represents an estimate of damages that takes into account both lost licensing and royalties together with costs associated with the internal and external resources engaged as a result of this infringement."

With regard to registrations, they will tell you this, "Registrations, settlement calculations, and photographer agreements would be provided through formal discovery and not before."

I agree with everyone, your letter is great! Good luck!

[timtime]

Thanks peeved, Matthew, mcfilms, Lettered and BuddahPi. I am making changes to my letter as the feedback comes in and I will be sure to post all replies I get from Getty. It's really helpful to hear from fellow ELI members what to expect in a rebuttal to my letter, lessens the impact of their scare tactics for sure. Let's see how well you score, peeved!

I guess I won't provide the email address and phone number so as to remove the easy avenues of harassment and insure I have a clean paper trail of their extortion attempts. Looking forward to the next piece of content for this thread!

[SoylentGreen]

What a great letter... well done indeed...!

Here's my reaction when I read it:
http://media.tumblr.com/tumblr_lx1y423DU91qjq4se.jpg

S.G.

[Robert Krausankas (BuddhaPi)]

yeah don't give them your email or phone, make it as difficult for them as they deserve to spend as much time on this as you are...

I'm tempted to comment on Peeveds' fruit, but I'll hold off on that...for the moment anyway

[Robert Krausankas (BuddhaPi)]

I just had too..the first person that can identify the following wins something..

You're the cutest thing that I ever did see
I really love your peaches
Want to shake your tree

My peaches must be hanging low as of late. It must be time to invest in a new bra.
 

[Peeved]

LOL Budd...The Joker...The Steve Miller Band.....What did I win? hahaha!


@timtime....Of course you can leave your contact info off of your response letter but keep in mind that they have it anyway if your contact info is on your website. Still...yes the more work for them the better!

So nice to see Soylent and his smiles!
 

[timtime]

@SoylentGreen: LOL. I love Don Draper. So much so that I bought a set of his preferred Dorthy Thorpe roly poly tumblers on eBay. I especially love this season's "good-ish" Don vs. last season's "pathetic" Don. Thanks for you feedback!

[Robert Krausankas (BuddhaPi)]

Congrats to Peeved, she's just won herself a brand new set of peaches! No need to buy the new bra!



I thought for sure SG would have won, as I have info that he knows a bit about AOR

LOL Budd...The Joker...The Steve Miller Band.....What did I win? hahaha!

[Mulligan]

Timtime, very good letter.

Regarding the links to the other images you provided, I tried that one myself. Getty responded that other images don't matter, that this issue involves the image you infringed with, the Getty image we have rights to, blah, blah, blah.

They have legitimate and honest answers evasive misrepresentations for everything, and if they don't they just ignore those points in your letters.

I also advise no email, no phone conversations... get it all down in writing with a wonderful paper trail that a judge will find most interesting to read if they were actually stupid enough to bring a one image infringement case to court without having the proper standing to do so.

[timtime]

I'm thinking about formatting my response letter in Impact 8pt, or perhaps Comic Sans or Viner Hand. this might call for another poll...