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Oscar's Letter


Hi Folks,

I too have fallen prey to Getty.  My story is much the same as others.  My web guy sent me to sites to pic images from, told me had licenses for them, etc.  When Getty showed up last month, web guy says he has no idea what they are talking about, but cannot produce licenses, I own the site, etc.  So, I contacted a local IP attorney and he told me to pay the $1000, which if I responded in x days would "only" be $900.  This goes against my grain.  It's the principal of the thing!  I didn't do anything knowingly wrong.  Like Oscar says in his phone interview, most of us play fair and are willing to do the right thing.  Anyway, in my first letter, I asked for proof of copyright.  They responded with another picture of my site, the author's name, and another demand, but now down to $650.  So, I tried to play nice.  I looked up the image on their site, calculated what the cost would be for the time I used it, and offered them $120.  Sent it in with a letter stating if they cashed the check, I considered the matter closed, they had to hold me harmless, etc.  Well, of course they cashed the check.  And I thought I was home free.  But a few days later, I discovered in my Junk Box, a letter from them stating that the check was automatically cashed, I would be issued a refund, and that they still wanted their $650.  So, I spend most of today, Saturday, looking stuff up to put in my letter to them and come across this site.  Eureka!  Oscar, who is to be applauded for giving legal voice to this David vs. Goliath cause, is working on a letter.  Great!  How do I get a copy or at least a look?  

In the mean time, my letter is focusing on the fact that 1) I still don't have proof of copyright; 2) the image was used for educational purposes and as such is covered by the "fair use" guidelines in U.S. copyright law that provides exemptions when an image is used for educational purposes.  In this context, the use of the image is analogous to reproduction by a teacher of a small part of a work to illustrate a lesson.  There is no alleged nor measurable financial effect of my use of this image upon the potential market for or value of it.  3) I was unaware that this image had a copyright and that I did not procure it myself; there was not watermark on it and nothing on it to indicate that it was not in the public domain.  4) the law recognizes that some people "innocently infringe" on others copyrights.  In this case, proof of innocent infringement in this case consists of the absence of any copyright notice or watermark, the web developer’s procurement of, and representation of, this image to me.  5) Further, the law says “where the infringer . . . was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200.” 17 U.S.C. § 504(c)(2).  6)  I am willing to dispose of your request by taking down the picture and paying $200, in exchange for being free from any legal claims or collection actions by Getty Images relating to this matter.  

What do you think?  Any other ideas to fight off these 800 lb gorillas?
Thanks for what you are doing, we all need help with this.


Oscar Michelen:
Dear Ed:

Thanks so much for your post. I think your letter is a good start and you should do nothing further until you receive a response from Getty. This company is making a great deal of money off of this project.  These images could have been licensed from Getty for as little as $49.00 I am arguing therefore that these are their actual damages. (they only get statutory damages if they have a registered copyright).  So even paying the statutory  $200 per image as an innocent infringer may not be the right approach at this time though I could see how one may want to avoid any further aggravation.  I have been charging a small fee for a letter to Getty from my firm. The rate is well below the usual cost as my hourly rate is $450.00 per hour. Included in  the initial fee is the letter to Getty plus a response to their response if they write back.  Approximately two dozen companies have contacted me for the letter and to date I have no response from Getty.  The earliest one went out over six weeks ago. I want to make it clear that I am no fan of copyright infringement - in fact, I usually bring actions to enforce my clients trademarks and copyrights as most of my clients are small to mid-size businesses that often have their ideas and their content taken by larger companies.  But Getty's approach is overzealous, heavy-handed and I believe contrary to the letter and spirit of the Copyright Act. I would be glad to speak with you in a free telephone consultation, by the way.  Just call my office at 1-800-640-2000. Thanks for the post and keep up the good fight.


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