Success in My Battle With Getty -- By Doing Nothing

[Procrastinator]

A business with which I am affiliated received its first extortion letter from Getty back in early August 2010.  The story is the same one that has been repeatedly told by others on this forum: a web developer who swore that they had used appropriate images but had since gone out of business, a single allegedly infringing image, and a settlement demand for $800.  I fired up the google machine, educated myself on this site, and made the decision to take no action whatsoever.

Well, that's not quite right.  We replaced the image in question.  Other than that, we opened all the mail that we received from Getty and their lawyers, read it, laughed at the amateurish nature of their form letters, and let the clock run out.  Earlier this month, the three year period during which Getty could bring its claims lapsed.  The statute of limitations now bars any claim that they could bring.

Now, Getty didn't come after us as hard as they have others.  We never got any phone calls from debt collectors.  Nor did we receive any email traffic.  Just the regular drumbeat, every few months, of nasty letters (from Getty and, later, from McCormack)with threats to "elevate" the claim, to "refer the claim to our outside lawyers," to "recommend that our client file suit."  But we were not intimidated, threatened, or even the least bit nervous.  There was no way Getty was going to hire local counsel to sue us over a single image, when the infringement was non-willful, their actual damages were miniscule, and they would have had a tough time even proving that they owned the image.

I know some on here choose to hire Oscar--a very sensible and cost-effective plan, particularly if you're getting harrassed and want it to stop.  Others like to engage in extensive correspondence with Getty and their lawyers.  I view this as a mistake--you'll never change their minds, and you're revealing that (at the very least) they have the right address and that you are at least somewhat concerned.  Still others (you know who you are) take this as an invitation to wage war and make Getty regret having ever PicScouted your website.  Good for you!  Your cause is just and your actions noble, but I, at least, didn't have the time or inclination to do the same.

So for you newbies to the forum who just got your first Getty letter, don't despair.  Relax.  Breathe normally.  Consider your options.  And if you're comfortable with taking down the image, ignoring Getty's letters, and putting this whole issue out of your head for the next three years, the overwhelming odds are that you'll come out the other side just fine.

[Lettered]

Congrats on passing the SOL.  Your story is very similar to mine.  The one difference is a point I am going to respectfully disagree on.

I think it is worth it to respond one time with a fair offer to settle and a request for proof of ownership.  It only costs a little education time and a stamp (or a nominal legal fee if you want to get Oscar to make sure it is done right).  Of course it will likely be rejected.  But in the [probably unlikely in most cases] event that you land in court it might go a long way in showing you took this seriously and tried to resolve it in good faith.

And this is where our opinions begin to merge again.  Any further back and forth and arguing is probably just a waste of time and energy in my opinion.

Congrats again.

[Greg Troy (KeepFighting)]

Congratulations on getting past the three years!

[Procrastinator]

Congrats on passing the SOL.  Your story is very similar to mine.  The one difference is a point I am going to respectfully disagree on.

I think it is worth it to respond one time with a fair offer to settle and a request for proof of ownership.  It only costs a little education time and a stamp (or a nominal legal fee if you want to get Oscar to make sure it is done right).  Of course it will likely be rejected.  But in the [probably unlikely in most cases] event that you land in court it might go a long way in showing you took this seriously and tried to resolve it in good faith.

And this is where our opinions begin to merge again.  Any further back and forth and arguing is probably just a waste of time and energy in my opinion.

Congrats again.

Reasonable minds can, of course, differ on this point.  I don't think it matters much in any case.  With that being said, here was my reasoning for not responding at all.

1.  I don't think whether you take the demand seriously or try to resolve it in good faith matters at all in a courtroom setting.  In most circumstances in federal court, the efforts of the parties to resolve a legal dispute are not even admissible, under Federal Rule of Evidence 408.  Getty would not try to introduce your settlement letter (unless you admitted to infringement), and there would be no purpose for you to offer it in your case.  The issues in a copyright trial (including whether Getty held a valid copyright, whether you infringed that copyright, whether that infringement was willful, and what the damages should be) have little to nothing to do with whether you offered to settle the case.  I think it's nlikely that your settlement letter ever makes it into evidence at trial, and even if it does, it is of minimal relevance.

2.  However, if you write Getty a letter, it demonstrates to them that you are taking this seriously.  That just shows them that you're "a live one"-- you're concerned enough that you've started researching the issue, bought a stamp, written a letter, and offered to pay them.  That's their bread and butter.  I would imagine that the majority of people that wind up paying Getty off are people who wrote a letter just like that.  While I have no idea what their internal processes are, it would not surprise me if the people who get more letters, more emails, and contacted by debt collectors are the people who have indicated that they are nervous or taking this seriously. 

3.  On the other hand, if you never respond at all, Getty has no idea whether they even have the right address for you.  Maybe the business is defunct, maybe the owner has retired or died, or maybe you put down a fake address when you registered your website with GoDaddy.  The less they hear from you, the less incentive they have to try and pressure you.  They'll just put your address into their automated mailer serice, send you a form letter every three months, and do nothing further.

4.  Finally, there's no reason to take this seriously in most cases.  If somebody sends me a letter telling me that I owe them hundreds of dollars for resurfacing my driveway, but provide no proof that they actually resurfaced my driveway, I'm not about to write them a check.  Same thing here.  Absent any proof that they own the copyright they accuse your of infringing, it's no different than a Nigerian scam email asking you for money.  File it away, ignore it, and move on with your life.

[Greg Troy (KeepFighting)]

My comments appear in-line in bold.

Congrats on passing the SOL.  Your story is very similar to mine.  The one difference is a point I am going to respectfully disagree on.

I think it is worth it to respond one time with a fair offer to settle and a request for proof of ownership.  It only costs a little education time and a stamp (or a nominal legal fee if you want to get Oscar to make sure it is done right).  Of course it will likely be rejected.  But in the [probably unlikely in most cases] event that you land in court it might go a long way in showing you took this seriously and tried to resolve it in good faith.

And this is where our opinions begin to merge again.  Any further back and forth and arguing is probably just a waste of time and energy in my opinion.

Congrats again.

Reasonable minds can, of course, differ on this point.  I don't think it matters much in any case.  With that being said, here was my reasoning for not responding at all.

1.  I don't think whether you take the demand seriously or try to resolve it in good faith matters at all in a courtroom setting.  In most circumstances in federal court, the efforts of the parties to resolve a legal dispute are not even admissible, under Federal Rule of Evidence 408.  Getty would not try to introduce your settlement letter (unless you admitted to infringement), and there would be no purpose for you to offer it in your case.  The issues in a copyright trial (including whether Getty held a valid copyright, whether you infringed that copyright, whether that infringement was willful, and what the damages should be) have little to nothing to do with whether you offered to settle the case.  I think it's nlikely that your settlement letter ever makes it into evidence at trial, and even if it does, it is of minimal relevance.

While it is extremely rare for Getty to take anyone to court they have done it including two cases just recently, one of which was over a single image. General consensus around here is they chose that case carefully as it was a slamdunk and would allow them to reference in future demand letters to frighten people.

I believe that the federal court would look at all evidence presented and it very well may make a difference if you can show you tried in good faith to settle the matter as opposed to Getty showing up and saying here is our registration for the image, copies of the letters that were sent which all went unanswered and ignored. If they take you to court it will be shown the address the letters were sent to was your address.

Again just my opinion and everyone must choose the right option for them.

2.  However, if you write Getty a letter, it demonstrates to them that you are taking this seriously.  That just shows them that you're "a live one"-- you're concerned enough that you've started researching the issue, bought a stamp, written a letter, and offered to pay them.  That's their bread and butter.  I would imagine that the majority of people that wind up paying Getty off are people who wrote a letter just like that.  While I have no idea what their internal processes are, it would not surprise me if the people who get more letters, more emails, and contacted by debt collectors are the people who have indicated that they are nervous or taking this seriously. 

Well I do take the matter of copyright infringement seriously but I refuse to pay anyone presenting me a bill without proof.

Besides providing hardcopy proof of your good faith efforts it also shows Getty's hand, that this is just a business model and tantamount to legalized extortion. What open, honest, reputable and ethical company would tell someone they just presented a bill to I will only show you that you owe this bill to us when we sue you? I believe the courts will take note of this if it is presented properly. The courts are showing they have very little patience for trolls who abuse the law.

I can only speak for myself as to my internal processes, if you send me letters threatening to take me to court and sue me unjustly, I personally will respond to you quickly, publicly and effectively within the legal means available to me and to the best of my abilities to end the harassment while showing others who may be in the same situation you can fight back. I provide this thread is an example:

http://www.extortionletterinfo.com/forum/getty-images-letter-forum/an-experiment-against-getty/



3.  On the other hand, if you never respond at all, Getty has no idea whether they even have the right address for you.  Maybe the business is defunct, maybe the owner has retired or died, or maybe you put down a fake address when you registered your website with GoDaddy.  The less they hear from you, the less incentive they have to try and pressure you.  They'll just put your address into their automated mailer serice, send you a form letter every three months, and do nothing further.

These are all very good points and it has been shown that this is definitely a valid strategy as well.

4.  Finally, there's no reason to take this seriously in most cases.  If somebody sends me a letter telling me that I owe them hundreds of dollars for resurfacing my driveway, but provide no proof that they actually resurfaced my driveway, I'm not about to write them a check.  Same thing here.  Absent any proof that they own the copyright they accuse your of infringing, it's no different than a Nigerian scam email asking you for money.  File it away, ignore it, and move on with your life.

I concur with your sentiments about resurfacing the driveway but the main difference from the Nigerian email scam and Getty's extortion demand letter program is that the Nigerian scam just send emails out trying to get people to send the money whereas Getty sends emails out along with screenshots showing use of an image.

While I am 100% on board with no money for no proof, this is one of the major contentions with Getty along with the unreasonable sums asked for. Remember that copyright infringement is a statutory offense meaning it doesn't matter how the image got where it was unless it was fair use, licensed or you are given permission from the owner to use it then there is an infringement. As I stated above any honest, reputable and ethical company would listen to the letter recipients and take extenuating circumstances into account and charge accordingly. One example out of many for this would be someone who knowingly takes and uses images on their website because they don't want to take the time, trouble and expense of licensing their images is not the same thing as someone who in good faith hired someone to design a website and was told everything is licensed. Yet in Getty's eyes these two people are one in the same for they try to overcharge the same amount to both individuals.

[Jesse77]

Thank you for posting your success story Procrastinator!  It most certainly eases my mind.  I've been contacted several times by Getty & McCormack, first being in the Spring of 2012.  I've got a question though, and am hoping that you may be able to help.  I was contacted about 5 months after Getty found the image on my site.  If it came down to the nitty-gritty, my statute of limitations would start when they contacted me.  The screen capture that was sent to me in the big Getty letter, is far too tiny and grainy to see the time stamp, but I can see that it's there in the bottom right corner. (Very old Windows version)  I just can't make out the date.  If anything ever came of this, I would assume that the screen shot in evidence would have to be bigger and clearer. Correct?  Therefore, the date would be visable.  So then my statute countdown would have started 5 months prior, in 2011. Correct?
Another question, can you recall how many times you were contacted by Getty and/or McCormack?  How long did it go on?  Were you still getting letters at the very end?  I'm doing the same thing as you did.......not contacting them, period.......just waiting it out. :-)
Thanks again!  No one ever gives 3 year updates on here (that I know of) and I'm sure it helps to ease a lot of minds.

[Robert Krausankas (BuddhaPi)]

I'm not sure the "time stamp" of the screen shot would mean anything in a court... many computers have incorrect time settings and bios that are not correct, which is another reason to based the SOL on the date of the first leeter from Getty, as that would be un-questionable...

Theres no telling how many times you will be contacted by Getty, McCormack or NCS, there really is no ryhme or reason, but generally they will continue to harass you until the 3 yrs is up, and we just got our first letter example from Timothy McCormacks office sent that is actually past the 3 yrs... a sure fire reason to submit a bar complaint against Lauren Kingston and his office..

[stinger]

By law, the statute of limitations definitely begins when they discover the "infringement".  Everyone on this board recommends your first letter date because, as Robert says, that is proven by the letter.

If you have another way to prove when they discovered the infringement, that will work.  But the keyword is PROVE.  As Robert says, they can dispute the computer date.

[Procrastinator]

Thank you for posting your success story Procrastinator!  It most certainly eases my mind.  I've been contacted several times by Getty & McCormack, first being in the Spring of 2012.  I've got a question though, and am hoping that you may be able to help.  I was contacted about 5 months after Getty found the image on my site.  If it came down to the nitty-gritty, my statute of limitations would start when they contacted me.  The screen capture that was sent to me in the big Getty letter, is far too tiny and grainy to see the time stamp, but I can see that it's there in the bottom right corner. (Very old Windows version)  I just can't make out the date.  If anything ever came of this, I would assume that the screen shot in evidence would have to be bigger and clearer. Correct?  Therefore, the date would be visable.  So then my statute countdown would have started 5 months prior, in 2011. Correct?
Another question, can you recall how many times you were contacted by Getty and/or McCormack?  How long did it go on?  Were you still getting letters at the very end?  I'm doing the same thing as you did.......not contacting them, period.......just waiting it out. :-)
Thanks again!  No one ever gives 3 year updates on here (that I know of) and I'm sure it helps to ease a lot of minds.

First of all, I am not an intellectual property attorney, and am not providing legal advice.  My thoughts are provided for entertainment purposes only; if you would like actual legal advice, please contact an IP attorney licensed to practice in your jurisdiction.

The statutes setting forth the three year statute of limitations are quite clear -- the three years begins to run from (at the latest) the time when Getty knew of your infringement.  Now, a blurry screenshot is not great proof of this.  But if Getty ever sued you, you as a defendant would have the right to take discovery from them -- basically, to demand a bunch of documents and ask them questions (both through interrogatories and depositions).  What you would want to do is to ask for all documents they have regarding your alleged infringement and how they became aware of it.  Presumably, they would produce documents that show when PicScout (or whatever tool they were using) flagged your webpage.  If the webpage was flagged more than three years before they filed their lawsuit, you're very likely to get the case dismissed on statute of limitations grounds.  The time runs from when they discovered it (or should have discovered it), not from when they first wrote you a letter.

In terms of number of contacts, I think we were contacted about three or four times by Getty, and then another four or five times by McCormack.  I'm really hoping that McCormack contacts us again, as I'm just itching to unload a serious bar complaint.

[Robert Krausankas (BuddhaPi)]

Hey Procrastinator!! I'm not sure if if would hold water, or would even be appropiate, but if you do feel inclined to file a bar complaint against Seattle Attorney Timothy B. McCormack, you might consider including the docs we have of the letters that came from his office AFTER the SOL ran...just say'n

[Procrastinator]

Hey Procrastinator!! I'm not sure if if would hold water, or would even be appropiate, but if you do feel inclined to file a bar complaint against Seattle Attorney Timothy B. McCormack, you might consider including the docs we have of the letters that came from his office AFTER the SOL ran...just say'n

I'm not inclined to file a bar complaint at this time.  If we get a letter that's after the three year statute of limitations, I will probably do so.

[Oscar Michelen]

Good call and good job