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Author Topic: My Reply from Getty Images  (Read 4509 times)

tkcom

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My Reply from Getty Images
« on: August 05, 2008, 08:09:26 PM »
Hello,

We're a small business in New York State and we've received the Getty letter last month. The image referred to in their letter was not hosted on our website. Instead, it was part of a template provided by an affiliate partner hosted on their web servers. We responded, per your advice given in this discussion board, by requesting proof of copyright, license and damages. This was their response:

Getty Images is a reputable company and the leader in our industry, so for us to bring a meritless claim against your client would be irresponsible and quickly lead to the diminished credibility of our good name. With respect to the unauthorized use of our represented imagery, the burden of proof lies with your company to show licensed use of the images in question. We would be happy to produce the requested information only if compelled by the court, but it is our intention to resolve this matter before such legal proceedings become necessary. Getty Images asserts, for the purposes of settling this matter--and can further assure you under penalty of perjury--that all copyrights related to the images in question are owned by our represented photographers. Absent the appropriate licenses surrounding the specific use of the images in question - the demand presented is the minimum Getty Images would expect to receive in a matter such as this. As such, we will continue to pursue for settlement of the demand presented to avoid further escalation.

As previously mentioned, the image located on your website is a Getty Images Rights Managed image. As you and your designer may know, these particular Getty Images Rights Managed images are exclusive to Getty Images and only for license through us. The copyright is owned by our represented photographer for whom we have exclusive agreements to not only represent their images through licensing the use of their intellectual property to our customers, but to also protect them against unauthorized use, otherwise known as copyright infringement. For more information regarding our rights to the images in question, please visit the URLs below:

Getty Images looks forward to settling this matter between our companies quickly and amicably. The terms of this settlement offer shall be kept confidential, except as may be required by law. Getty Images expressly reserves all rights and remedies available under copyright law.

We appreciate your continued attention to this ongoing matter.


We would like to know your thoughts on their response.

Thank you

Oscar Michelen

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Re: My Reply from Getty Images
« Reply #1 on: August 06, 2008, 12:30:07 PM »
Thanks for the post!  You may want to refer whomever responded to you form Getty to the prior post on this forum from "gettyvictim120" who received a full refund of his payment to Getty  as Getty was apparently caught "double-dipping" by his State's Attorney General. If Getty is claiming that "reputable" companies don't file claims that get dismissed or are proved meritless then it should look at the docket sheet for New York commercial claims cases to see how often that occurs.  

But to provide you with a practical response - let me say this. In any copyright or trademark infringement lawsuit, the plaintiff must first allege and prove its copyright or trademark.  So I respectfully disagree with Getty's legal position on this issue. When Getty states:

Getty Images asserts, for the purposes of settling this matter--and can further assure you under penalty of perjury--that all copyrights related to the images in question are owned by our represented photographers.  

that does not prove that it registered the copyright. They are two different things.  The minute I take and develop a photograph I own the copyright to that image, the same way that I own the copyright to a song as soon as I compose the song. There is no legal requirement for me to register a copyright in order for me to be able to enforce a copyright. But in order to be eligible for statutory damages over and above actual (out of pocket) damages I would need to have registered the item.  I don't dispute that the photographers that Getty represents own the copyrights to the images, I dispute whether they have registered the images entitling them to the relief they are seeking.  
Similarly, I  take issue with Getty's other statement in their response to you:        

the demand presented is the minimum Getty Images would expect to receive in a matter such as this.
     

That statement is meaningless. It does not state that the demand presented is the minimum Getty would be likley to receive in a successful outcome of the case. It says it is the minimum they would expect to get.  But what is their expectation based on?  Is is accurate?  Is it based on the law? or just their hope? That it does not say that it is what their lawyers tell them is the likely outcome is very telling. They choose their words carefully as one would expect when someone is engaging in debt collection.  

Finally, in response to Getty's statement:

for us to bring a meritless claim against your client would be irresponsible and quickly lead to the diminished credibility of our good name

Getty must not be surfing its name on the net - otherwise it would come up with many pages -especially ours - that talk about the company negatively based on this recent practice of theirs. There are forums similar to ours in the UK, Canada, and Australia. So if they were truly concerned about their reputation, they would start dealing with people fairly and stop this over-aggressive and over-zealous behavior.


Please feel free to give me a call at my firm's national toll free phone number 1 800 640 2000. I would be delighted to talk to you and give you a free consultation on how to next proceed.  I am available anytime after 2:30 EST today (8-6-08)

 

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