Roll the Dice? - Is Getty likely to win an award GREATER than initial demand?

[golegup]

REALLY? - Is Getty really able to sue (and win) for damages beyond what they 'initially' claim in their demand letter?   If courts are more likely than not to 'reduce' the claim for unintentional use, then wouldn't it be a better strategy to just let that scenario play out?

In our case, Getty is demanding payment in the amount of $780 for use of a single image on a secondary web page on a commercial web site.   Getty threatens that not paying could lead to substantially greater damages, unless we settle immediately.

What if we were to ignore their demands AND Getty actually did pursue this in court. (unlikely scenario at best considering the $ amount)

Q: Is it possible or likely that Getty could obtain a judgement in excess of the original demand amount?  ($780 in our case).

AND if not:  why not just roll the dice?

Let's assume this case does go to court, AND Getty does in fact win a judgment.  How much 'more' are the courts likely to award Getty in excess of the amount they initially stated in their original demand letter? 


(as suggested in other posts, the more likely scenario is the court would reduce the judgment to what the court determines to be a fair market value.  Is it likely that the courts would award Getty punitive damages for an 'unintentional use' and win?

It seems in this scenario regarding the limited dollar amount, it might be best to just call their bluff. i.e., Roll the Dice!


Is this a good Vegas bet???

[SoylentGreen]

I think that the major thing that people are concerned about when it comes to court are the legal fees.
That is, if your adversary prevails in court, they could be awarded the cost of hiring their lawyer(s).
Historically, Getty has used an expensive legal team to rack up astronomical legal fees, and used this as leverage.

Personally, I'm inclined to "roll the dice" if the other party doesn't have a "winnable" court case.
In such a scenario, a court foray would be unlikely, or I could likely fight it out, win and collect MY legal fees.
Of course, when something goes to court, one is allowing another person (the judge) to decide the outcome.
So there's no "guarantees" in any case.  But that's just me.

For one image, and 780 dollars, you're at quite a low risk for an actual lawsuit, I think.
Again, if one IS sued, it's not too late to make a reasonable settlement to close the matter.

S.G.

[Peeved]

Personally, I am no "gambler". I think the most important thing is to do everything you can to make sure that as Soylent states, "the other party doesn't have a winnable court case".

To increase your "odds" of having a "winnable court case", you MUST STILL do your homework. Make SURE that the alledged images are NOT REGISTERED with the U.S. Copyright Office. I HAVE seen some REGISTERED Getty images in previous searches both by Getty and by the artist. It has been mentioned numerous times to CHECK OTHER SOURCES for the images in question as well.

Personally, I feel that if the game and the odds look good, I will play. As Soylent says, "There are no guarantees in any case."

[golegup]

#1: Wouldn't this be considered a matter for "Small Claims" Court (<$5k) in most US jurisdications? If so,Small Claims Court usually does not award legal fees to the plantiff.


#2:  If a court ultimately chooses to reduce the settlement amount Getty is seeking (to a more reasonable 'fair market value'), would the courts likely be willing to grant addtional legal fee to the plantiff in excess of the original demand letter?

[Robert Krausankas (BuddhaPi)]

#1 Copyright infringement is a federal matter, so no small claims court does not apply.

#2 probably not

Chance are it won't go to court anyway, as it's been said here many times, going to court over 1 image is costly, and generally not worth the effort, especially since Getty Images has weak cases for the most part

[Jerry Witt (mcfilms)]

My only note on #2 is that if you do offer them some sort of nominal payment and then the court finds that you owe them the amount you offered (or less), I am fairly certain you can then have Getty pay your legal fees. Copyright cases are one of the few where a defendant can get the plaintiff to pay their legal costs. I know this is true if you WIN, but I also believe if you made a reasonable offer and it still went to court you can request reimbursement for your fees from the judge. I just don't have the reference right now.

[Lettered]

If I understand it correctly:  Copyright law itself allow awarding of legal fees to ONLY (albiet not necessarily) the prevailing party.  Apparently, some defendants have had luck with "Federal Rule of Civil Procedure 68" in recouping their legal costs, even in copyright infringement cases where the defendant actually lost the case (because the pre trial settelment offer was greater than the award to the plaintiff).  I think Rule 68 is what McFilms was alluding to.  However, I don't think Rule 68 is by any means a guarantee of recouping your legal fees if your offer is greater than the ultimate award.  A very good write-up regarding rule 68 and when it might apply can be found here:

http://www.lucascavalier.com/publications/offer_of_judgement.html

[Oscar Michelen]

OK - just a quick few comments on this - You can only get legal fees in copyright litigation as a plaintiff is the "work" was properly registered with the Copyright Officeat the time of the infringement. So in the vast majority of cases, Getty would not be entitled to legal fees even if they prevail. By Federal law, you must register the work before you file a lawsuit, though the Supreme Court of the United States has recently held that this error can be corrected without a jurisdictional issue dismissing the lawsuit.  Rule 68 can be a useful device which I have used in a few lawsuits to success. Here is the text of rule 68:

Rule 68. Offer of Judgment

(a) Making an Offer; Judgment on an Accepted Offer. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.

(b) Unaccepted Offer. An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs.

(c) Offer After Liability is Determined. When one party's liability to another has been determined but the extent of liability remains to be determined by further proceedings, the party held liable may make an offer of judgment. It must be served within a reasonable time—but at least 14 days—before the date set for a hearing to determine the extent of liability.

(d) Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

The main problem with Rule 68 is that it requires you to accept having a JUDGMENT (publicly available) entered against you though if the other side accepts the offer, you can usually work out that it just go away.  However, if you win (or they get the same or less than you offered) you can get all your fees and costs back form the date of the offer.

[Jerry Witt (mcfilms)]

"you to accept having a JUDGMENT (publicly available) entered against you"

I suspect that this in the few cases where the stock agency appears to have "won" this was often what happened. The defendant decided they didn't want to "roll the dice" and just made an offer. This seems to me to be better than just not responding and accepting a default judgement. (Although I still wish more people would see it through and win.)