ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: annalise on February 02, 2012, 08:44:24 AM
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Regarding the minimum judgment award to plaintiffs for innocent infringement of one photo, that the court can award is $200? So, one should offer at least this amount to possible avoid paying any legal fees of plaintiff?
I remember reading somewhere $300
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Regarding the minimum judgment award to plaintiffs for innocent infringement of one photo, that the court can award is $200? So, one should offer at least this amount to possible avoid paying any legal fees of plaintiff?
I remember reading somewhere $300
Taking the bait here....
A) WHY would you ever want to offer out of the gate the maximum amount that a court might award for "innocent infringement"?
B) Offering the maximum amount that might be awarded for "innocent infringement" does NOT "avoid paying any legal fees" should your case go to court! Avoiding legal fees can only be accomplished if the Stock Company accepts your offer which is highly unlikely.
IF you are going to make an offer, the "idea" is to offer as low as possible and try to negotiate for a settlement (unlikely to be accepted) KNOWING that IF it does go to court and you can prove "innocent infringement", a judge MIGHT award a maximum amount of say $200.00.
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The $200 minimum award is for statutory damages which Getty is not entitled too since the images are largely unregistered. There is no technical minimum or maximum on what a court can award on "actual damages" though most courts have said that the amount of statutory damages should bear some relationship to the plaintiff's actual damages. Hope that's not to confusing.
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I am confused. I thought if you offered the minimum award judge will grant for innocent infringement - of $200 and the troll didn't accept it, then if you go to court and the judge awards the $200, then you would not have to pay for their legal fees since they already refused your same offer of $200.
Just trying to decide how high to go with any negotiations. Definitely not starting out offering the entire amount.
How long to these supposed negotiations last before they say they are going to sue? Am I looking at 6 months, a year of letter writing? Hmmm How long does law school take?
Definitely not going for the speedy email route- I would have to counter-sue for time-infringement for ruining every day with one of their emails LOL
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I'll bite...
IF you feel compelled to make an offer, find out how much a similar image is selling for on other sites for a 1 year license, divide by 4 and make an offer of that amount...I just pulled that out of my hat, because they will NOT accept any offer you make unless it is the full amount. The back and forth will continue as long as you allow it to, plain and simple..
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Annalise,
May I suggest that you can play "what if" all day long and not get the answer you seek. While having legal arguments and insights on your side is helpful, if you think you are going to "outlawyer" the opposing side into submission, you are not understanding this fight and you have gone all the way to far left field.
The "reasonable" offer you make is going to get turned down whether it is $100, $200, $300, or $400. Pick a number you are comfortable with in case they miraculously say yes. Even then, you can change your mind.
You ask if it will take 6 months or a year is going on the WRONG track. You are playing their game.
My case ended within 2 replies in about 60 days and that was it. I did my courtesy responses because I didn't want to be accused of ignoring the situation. But it didn't take me long to assess what (and who) I was dealing with and respond appropriately. I laid down the law of the consequences of their continuing on.
I had no plans on going around and around with a $12-$15/hour clerk trying to "convince" the other side. I knew my position and my limits and what I was going to put up with and what not to put up with.
Believe it or not, the brokest people really have the least to worry about in these cases. I keep hearing from people how broke they are and how they can't pay. Well, that actually works to your benefit if it is the truth. If I was broke, I would simply tell them that. You can go spend thousands of dollars to come after me but if my monthly checking account hovers around $200 per month, there is not much to get.
Mcfilms said it in a very nice way you stop asking and "you start telling" people how things are going to go down. I have used this tactic repeatedly over the years and it works.
Do yourself a favor and back up the truck to get a wider viewer. If you don't, you are going to get sucked into the rabbit hole.
Just trying to decide how high to go with any negotiations. Definitely not starting out offering the entire amount.
How long to these supposed negotiations last before they say they are going to sue? Am I looking at 6 months, a year of letter writing?
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When you say "I laid down the law of the consequences of their continuing on" - what exactly did that entail?
And how did they respond?
It appears that the crux of all of these cases is the improper registration of copyright.
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annalise--
The entire chronology of Matt's case is here: http://www.extortionletterinfo.com/my-case/
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No, the crux of of Getty Images cases is that the system is a well-oiled, energy-sucking, money-making machine that works best against those who can't see the big picture and respond like trained monkeys (no offense intended here, just a descriptive term to drive home a point) to their letters. Because Getty Images has not filed lawsuits against anyone with only a few images, the solution comes down to making a stand in such a way that they "get" the message to leave you alone.
I have never heard of any "successful" settlement of less than $500/image unless someone paid for legal representation. So, unless you are prepared to do that, your only alternative is to "make a stand" in a convincing way.
The whole discussion of improper registration and other related issues is simply a talking point, nothing more.
And how did they respond?
It appears that the crux of all of these cases is the improper registration of copyright.
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Believe it or not, the brokest people really have the least to worry about in these cases. I keep hearing from people how broke they are and how they can't pay. Well, that actually works to your benefit if it is the truth. If I was broke, I would simply tell them that. You can go spend thousands of dollars to come after me but if my monthly checking account hovers around $200 per month, there is not much to get.
Exactly. There is such a thing as "judgment proof." And although I don't advocate it as your sole defense, I believe it strikes terror into the heart of prosecuting attorneys.
Basically, if you work freelance, there is no paycheck to garnish. If you are retired or collecting social security garnishment is not possible. Keep in mind that if you do get a job over the next 7 years, they would be able to garnish your paycheck (up to 25%). And also not paying this debt will ding your credit.
On the flip side, will your adversary want to waste time going to court, risk loosing, be forced to produce a bunch of contracts and documents, all for a judgment that will go unpaid?
This may not make them walk away. But I think any reasonable offer you make has to be presented to their client. So without admitting guilt, in the interest of ending this amicably, make a low-ball offer*. Tell the attorney that when he presents your offer to his client to be sure to mention that you are pretty much judgment proof and broke and you will be putting this payment on your credit card or selling your bicycle to pay for it.
*BTW, what "low-ball" is depends on the stock agency involved, the registration status of the image, the current and previous license price, comparable image prices, and the prevalence of the image all over the Internet. In most cases I'm thinking $10 to $200, probably $50 most of the time.)
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Way ahead of you bro.
http://www.extortionletterinfo.com/forum/getty-images-letter-forum/what-makes-a-person-'judgement-proof'/
But, it was worth bringing up once more, thanks.
S.G.
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I should have figured this was already covered. And Oscar offers up better (and let's just say probably more legally sound) advice.
There was someone on her a couple months back that sounded on the verge of suicide and talking about how this would wipe them out. I guess I had them in mind when i wrote that.
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Matthew-- FYI I looked up the person that handled your demand letter on Linked in and her job description states that not only did she negotiate amicable settlements, she excelled at turning infringers into customers, leading her department in Q1 2010. Though you might get a chuckle out of that info.
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I thnk you should post the link to her linked in profile, after all she did such a wonderful job, we should reward her as well with a little exposure.. ;D
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... not only did she negotiate amicable settlements, she excelled at turning infringers into customers...
That is hilarious.
I can't imagine anyone subjected to Getty's strong-arm tactics would ever, ever use them again.
Just this week I had a customer that wanted to use microstock for his site. I purposefully steered him away from iStock (a Getty company) to Pond5. We got down to the last image and he really wanted this one from iStock. Finally I said, "Look, if you want it, you are going to have to buy it. I cannot do business with them." And I related my whole story. He ended up getting the Pond5 image instead.
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For the record, I removed Chloe's name from the main ELI website as a professional courtesy a couple years back. The request came from one of the managers at Getty Images. I did it because she had the good sense to let my case go after my 2nd letter. I think she "understood" what I was saying to her in my letter and my very public blog posts.
I wasn't out to personally crucify her but I would have not hesitated to do so or anyone else at Getty Images that stood in my way if I had to.
I actually don't have an axe to grind with her now since my case is long over with. Regardless, I think it is safe to say she made a permanent impact in the fight against the stock photo industry. We can thank Chloe for being partially responsible for instigating my launch of ELI and establishing my business relationship and friendship with Oscar.
Everyone give Chloe thanks and applause. LOL. None of us would be here today if it were not for her.
Matthew-- FYI I looked up the person that handled your demand letter on Linked in and her job description states that not only did she negotiate amicable settlements, she excelled at turning infringers into customers, leading her department in Q1 2010. Though you might get a chuckle out of that info.
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At this juncture, you have three options: (1) continue to ignore these overtures unless and until suit is filed (in which case you would need to respond to avoid default); (2) An IP attorney could respond to this attorney stating that they have been retained to represent you and have future communication handled through them (they would hate that); or (3) you could drag the matter out further volleying generic e-mails back and forth with this lawyer (essentially saying nothing) and see if she just gives up. If the photo attorneys law firm is not based in the state where you live, then it’s highly unlikely that these attorneys are authorized to practice before the local federal courts so they would need to retain another law firm to act as “local counsel” in order to file suit. This will eat into their recovery. Moreover, I am sure Mr. John Doe, the photographer, doesn’t want to come to your state to litigate this case, especially if he lives 10 hours away over 1 photo, removed before asked, and used for only a few months, etc...intentional profiteering scenarios don't apply here and you need to get punished for those. My belief is that the photographer probably told the “photo attorney” I’ll take settlements (e.g., cash payments) but I don’t want to litigate.
You can make a settlement offer, IE $500 to the demanding source if it is driving you crazy, and tell them they can either take the settlement, or you will apply it towards signing a retainer with a local IP attorney and then they could direct all future correspondences to your attorney. You could also advise them that attorney will be the same source to direct any inquiries regarding issues related to any future bankruptcy proceedings you may have and wish them a good day.
I would ask the photo attorney for the actual damages, which they most likely will not provide, and keep asking as without it you cannot make a reasonable settlement and the court are leaning, in innocent/ignorant scenarios where the photo has no relationship to your business, was removed long before you even received a letter demanding it be removed and it was only there a few months, with damages more in line with actual. I would think an offer of 3X the actual damages would be a good reasonable offer, if necessary. With the emergence of cyber fraud I would think that it would be reasonable to ask the photo attorney for a copy of the contract , notarized, showing that shows she in fact has the agency relationship she alleges. Otherwise, how do you know it's legitimate - its reasonable. As I have seen on this site, it is sort of like unintentionally rolling into the back of the car in front of you. The driver of that car says they own the car, but cannot provide a registration. You apologize and offer to pay for the damages out of your pocket and make a settlement. A few days later, the person who was driving that car says the damages are $5000. You are naturally shocked, as this was only a tiny ding and some scratched paint. You ask for a copy of the registration to verify it with their license to make sure it is their car. Otherwise she has no right to mediate a settlement, you also ask for a copy of the collision shop estimate that she says she has. She refuses to provide any of this information. Do you write a check? I wouldn't. If you go to court and she asks for "reasonable" attorney fees, had she provided the information you asked for, which was reasonable and a necessary step to mediate a settlement, there would have been no need for attorney fees. Thus, I would think those fees would be denied, since they weren't reasonable because she was unreasonable in the attempted settlement stages and incurred unreasonable attorney fees relative to the totality of circumstances