Strange third letter from Getty, community input requested.

[dnsg]

First, many thanks to the website creators.  We have studied the information here and it helped us greatly in writing a response to initial Getty letter, but now we received something that we think was never mentioned here and we would like to share it with the community.
Here is the full story.  We have received the first Getty Letter about a month ago. Copyright infringement for one image was alleged, plus unspecified enforcement/collection costs, and the settlement claim was for $600. We have immediately removed the image, apologized and requested proof of copyright/registration/licence agreement to represent the copyright owner/breakdown of collection costs vs actual damages claimed.  The second letter basically declared that the image in question is licensed exclusively by Getty Images and restated the same claim, without providing any proof or documentation requested. In response, we sent another letter describing my position that any monetary claim by any party has to be substantiated with some proof and requested again to furnish documentation substantiating the claim and the amount.  This all has happenned within two weeks, with their letters arriving by FedEx almost immediately or so it feels. Now the third letter we have just received is very weird. It is just one short paragraph. Here is the exact wording:

"In response, the requested articles - such as proof, registrations, representation, and pricing will be furnished only when compelled by the court through the course of discovery. To provide this information beforehand would take additional time as well as additional costs.  Our settlements are set up to quickly close unauthorized use cases.  If cases were to go to legal proceedings, our represented photographers would have registrations prior to filing.
Our position in this case remains unchanged. We will advice the next steps."

We would love to get your opinions on what it really means.   Does it mean they are preparing to sue us?  What happens if they present the proof of damages only during litigation - this would leave us 0 chance to respond adequately in our defense.  How could you possibly prove in court of law that your damages including enforcement/collection costs are exactly $600?  And how can one claim damages by registering the image prior to litigation but AFTER the alleged copyright infringement?  Most importantly, how do you suggest we should respond to this letter?

[theisgroup]

dnsg Wrote:
-------------------------------------------------------
>And how can one claim
> damages by registering the image prior to
> litigation but AFTER the alleged copyright
> infringement?

they can't from section 412 of the copyright act:
In any action under this title, other than an action brought for a violation of
the rights of the author under section 106A(a), an action for infringement of the
copyright of a work that has been preregistered under section 408(f) before the
commencement of the infringement and that has an effective date of registration
not later than the earlier of 3 months after the first publication of the work or 1
month after the copyright owner has learned of the infringement, or an action
instituted under section 411(c), no award of statutory damages or of attorney’s
fees, as provided by sections 504 and 505, shall be made for—
(1) any infringement of copyright in an unpublished work commenced
before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the
work and before the effective date of its registration, unless such registration
is made within three months after the first publication of the work.

[Oscar Michelen]

Theisgroup is correct. While getty would have to register prior to instituting litigation, they would still be only entitled to actual damages and not be able to recoup legal fees and costs because in order to do so the registration must have occurred prior to the infringement. I have not seen a letter like this before either. I would not expect them to sue over one image and a $600 claim. I agree with you that a judge (if they ever sued) would not look well upon a plaintiff who is unwilling to offer any proof of its claim prior to filing a lawsuit where the defendant is asking for basic items such as you have.

[jenal0214]

It seems that their response with that weird letter is a repetitive one when requested with proofs and other documents.  While I did not write them, upon calling them requesting with the same documentations, I pretty much got the same response.  Seems like a generic response but consistent.  They weren't very friendly.  They must be drones going through the same conversations all day long.  

It seems that around $1000 is the general settlement for most people who are one-time one-picture mom & pop store infringers. @Oscar, what is the likelyhood that they will take you to court over that amount?  Many thanks to Oscar, Matthew and to this community.  This place provides a little peace of mind and provides some emotional reliefs for regular folks like us.

[theisgroup]

i am not oscar, but here are my opinions

you have to guess why gi is doing this. my assumption is either they think they can make some money or they are trying to make a point. if you assume that they want to make some money, you have to look at the cost to take someone to court. including the legal fees. obviously they either don't have internal cousel or their internal counsel do not see that it is worth their while. this comes from the people that report letter from outside counsel. mine is one of them and the place that sent me my letter came from the guy that owns the firm, which i can only assume is a firm of 1. at that point, there is not much to split for their time. if they file suite, it is going to take at least a day. even if this were a 50/50 split, the attorney would recieve $500 for the day or so of work. and that is if they are awarded the amount gi as determined as value of the image.

so it is probably not money they are after.

the other reason i see is that they are trying to make a point. they may be sending letters out until they find a large enough company and that they have a solid enough case to make it public. that basically give them a case to base future claims. or they are sending massive amount of letter to "scare" the public. this have value to gi as well. it allows them to perserve their "rights" at a very small expense. to send out letters cost very little. and if they get even 30% of the people to pay, then they prob cover their internal costs. even if they send your case out to outside counsel, sending a couple letters from a single attorney firm cost very little especially if they are form letter.

in the US anyone can sue for any reason, but there is a cost to do so. the cost to sue someone is not cost prohibative. i actually think it is too cheap to sue someone. it makes it too easy just to sue. but at the end of the day gi is a buisness and there has to be value to gi for them to persue legal action or at some point they will no longer be gi. my case would gross gi $3k if they took me to court and won and were awarded everything they claim. it would prob take at least 1 day if not 2 days. at that, it would be cheaper for me to just pay that. it is not even worth my time in lost revenue. but i am going to pursue this to it's limit.

[Jerry Witt (mcfilms)]

When (if) Getty actually decides to take one of these cases to court, I will kick in some money for their legal defense fund. I think it is important that they don't get that initial decision. Also, if Getty is trying to simply stop people from infringing, their settlement offer would be much more reasonable. There current tactic seems to simply be a cash grab.

I used to be a customer of Getty and iStockPhoto. They have lost my business and I wonder how many others have decided to stop doing business with a company that sues their customers. This whole thing is like the RIAA all over again. And we've seen how well suing customers worked for the music industry.

[dnsg]

Here is an unexpected twist to the story - after a long time waiting for the next step from GI, yesterday we received a fourth letter.  Contrary to the threat in the third letter ("We will advice you of the next step"), this letter only notified us that the case is still not resolved and that they still did not receive payment.  Plus a threat of escalation to the Legal department if immediate payment is not made.  A copy of their original first letter was enclosed. It is very strange as there was no mention whatsoever that we have been corresponding back and forth, that we contested the claim, that we asked for proof, it is as if we never replied to begin with.  As if you are having a conversation with someone where they obviously hear and comprehend you but then suddenly, responding to your next statement they just ignore it and repeat themselves.  How would you proceed? Should I just respond in a similar way and repeat the same requests for proof of claim that they have ignored first and agreed to provide only if compelled by court in the last letter?

[Matthew Chan]

You have to understand that the few frontline people you interact with are legal students that have to adhere to the party line. They are in no position or empowered to get into deeper discussions. They are simply trained to respond with the party line. They often resort to form letters which is what is happening with you. They might sprinkle in some customized responses but don't be surprised if they don't deviate much. Even if they wanted to do more, I believe that GI won't let them especially if they want to keep their jobs.  Anything they may feel personally, has to be kept behind closed doors.

In fact, I believe there is a healthy amount of turnover in the License Compliance Dept. I think there is a personal toll that the job takes over time.  I cannot prove this but that is my gut reaction in watching this over the past 3 years. In fact, over time, they have outsourced more of the responsibilities that was done internally before. They have slowly and gradually shifted more of the front line communication to other law firms and collection agencies. They are doing so to protect middle management by not exposing them to upset letter recipients.

[dnsg]

Do you think I should just reply in the same manner, asking for proof registration and the actual amount of damages they are claiming again?

[dnsg]

Wow, I just rechecked the image allegedly infringed upon and noticed with astonishment that it's license price went up from $49 per three month to $480!!!  Anybody is seeing thing with their images? Too bad I did not print the old price out to use as an argument.

[Robert Krausankas (BuddhaPi)]

Wow, I just rechecked the image allegedly infringed upon and noticed with astonishment that it's license price went up from $49 per three month to $480!!!  Anybody is seeing thing with their images? Too bad I did not print the old price out to use as an argument.

try using the wayback machine, with any luck it might be archived! gotta fight fire with fire!

[Matthew Chan]

It would seem they are modifying their prices AFTER they determine there might be an alleged infringement. If that is the case, it adds further fuel to the fire that GI is manipulating the facts. If this ever came out substantiated in court, it would be VERY damaging to them. But having said that, most letter recipients don't have the wherewithal or skills to prepare the case and stand up in court without help from an attorney.

Wow, I just rechecked the image allegedly infringed upon and noticed with astonishment that it's license price went up from $49 per three month to $480!!!  Anybody is seeing thing with their images? Too bad I did not print the old price out to use as an argument.

[Jerry Witt (mcfilms)]

Wow. Is there any way we can get before and after screenshots? This would be a valuable tool. If any of the people who have noticed this want to PM me, I will be happy to try and find archival shots of the web page with the previous list price.

[dnsg]

Yes, that was a big mistake for me not to print out the page with $49 price... Let everybody learn this lesson and make it the first thing they do when they get the first letter - for me it's too late to use it in court, but maybe somebody else will.
As far as using the wayback machine, unfortunately their pricing page is dynamic and it comes from the database and there are no archives for these pages, I tried.

[DJ_H]

On the subject of variable pricing, I have browsed the GI website for the image in question with my case. It seems that every similar photo I find is in the £10-£20 bracket, yet the specific photo in question is going for around £500 - £1200, depending on the length of time you use the image for. Does this sound fishy to you guys?