Think this letter will stop their harassment?

[AndrewRaia]

or at least make some valid points?

Dear Mrs. Kingston,

This and all previous communications are not an admission of guilt, however, I am obligated to defend myself accordingly.

According to US Copyright law, infringement in section (b) is defined below.

§ 501. Infringement of copyright
(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright.

The key phrase is this "any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright". You have yet to show me an official record of the Copyright holder for the images in question, so I took it upon myself to search the US Copyright Departments Public database and found the following results.

Getty Images - http://bit.ly/JhcVDV
Paul Conrath (Photographer) - http://bit.ly/IZ18Lc
Tristan Paviot (Photographer) - http://bit.ly/KYKIFK

As show in the Copyright Office search above, neither you or the photographer have any claim to a copyright on the referenced images. According to US Copyright Law, with no legal copyright to the image, you have no legal basis to file suit or seek damages.

This will be my final communication to you in this matter. I request a signed letter from your firm that you will no longer be pursuing this matter. Any further attempt to reach me on this matter beyond this requested letter shall be considered harassment and I will be forced to exercise my valid legal options.

Regards,
Andrew

on another note, it may not matter if this letter works, but she said they were seeking actual damages, according to copyright law.

§ 504. Remedies for infringement: Damages and profits
(b) Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

My site was not a registered company, I made no money, I have no records, and they have no way to show any actual damages. It was a hobby site. I would point this out to them but I am not sure if at this point it is necessary.

[AndrewRaia]

also not sure if this has a place in the letter...


17 U.S.C. §412, a plaintiff must show that the pictures were registered within three months from the date of first publication or that the registration occurred before the infringement began.

[stinger]

Andrew, I am as much a newbie at this as you.  And I would say that what you propose sounds good to me in terms of two guys going at it out in the playground.

However, when I step back from the situation, I think "Do you really want to quote the law to a law firm?"  That kind of seems like your letting them do battle with you in their arena.  Not that it wouldn't be fun to beat them in their own arena, but why go through all that trouble?

A simpler solution might be to let them know that you are a turnip that they will not be able to squeeze any blood out of.  Or, you can let them know that they are going to have to work hard and even then, there might not be any blood for them to squeeze out of this turnip.

Get your ego out of the way, and get out of this as simply as you can.  I know that's hard to do.  I have trouble doing it.  What getty does makes my blood boil.  And when my blood boils, I want to hurt them.  But in the end, it's the prudent solution.

[AndrewRaia]

yeah but couldn't a class action suit be brought against getty and these lawyers for extorting money from these people. I mean, how can you claim to be a copyright owner if you never registered the copyright? It is there for a reason, and they are just scaring people into paying them money.

[Lettered]

Andrew,

Not sure what your point, but I think you are saying that you cannot find the image in questions registered with the copyright office.  Not being registered before infringement (or withing 3 mos of first publication) only means that they can recover only actual damages (and not attorney fees and costs, and not statutory damages).  I think actual damages would be set to the fair market value of the license for the infringement period falling withing the statute of limitations (3 years max).  They would have to register the image before they took you to court, but they can do that and sue you for actual damages.

Would they actually incur the legal expenses to sue for actual damages over one or two images?  I really doubt it.  Every infringement they take to court runs some risk of them losing and setting an undesireable (for them) precedent that will haunt them for awhile.

I like the idea of looking around the internet for prices of similar images, then offering them something based on that finding.  There is a sample letter someone here wrote recently that did that.  That is assuming you cant afford Oscar's very reasonable fee to write the letter(s) for you.

and my standard disclaimer: Im not a lawyer and anything I write here is just my layman's understanding.

[AndrewRaia]

Maybe one of the lawyers could chime in lol .

thanks for the feedback. Section 5 says you have to have a copyright to seek damages at all it appears. If they are coming at me for actual they will get 0 cuz I made 0 off the image lol.

[Lettered]

Maybe one of the lawyers could chime in lol .

thanks for the feedback. Section 5 says you have to have a copyright to seek damages at all it appears. If they are coming at me for actual they will get 0 cuz I made 0 off the image lol.

they can register it just before they sue you for actual damages.  As a matter of fact they would have to do that in order to bring the suit.  They can still do it.  Actual damages would be the fair market value of the license since you didnt profit from it.  They would be barred from recovering their atty fees and statutory damages, though, which I think would be a huge deterrent for them.

[AndrewRaia]

This might mean otherwise? This is before talking of stat damages, says that have to register it within 3 months of notifying me they intend to get a copyright and persue it, and its been well over a year since they first notified me.

411
(c) In the case of a work consisting of sounds, images, or both, the first fixation
of which is made simultaneously with its transmission, the copyright owner may,
either before or after such fixation takes place, institute an action for infringement under section 501, fully subject to the remedies provided by sections 502
through 505 and section 510, if, in accordance with requirements that the Register
of Copyrights shall prescribe by regulation, the copyright owner—
(1) serves notice upon the infringer, not less than 48 hours before such fixation, identifying the work and the specific time and source of its first transmission, and declaring an intention to secure copyright in the work; and
(2) makes registration for the work, if required by subsection (a), within
three months after its first transmission

[Robert Krausankas (BuddhaPi)]

I'll jump in! ( I'm not a lawyer) but I'll be as clear as possible here.. There are precisely 2 ways to stop them from harassing you.

1. pay them ( either the full amount or a reduced amount)
2. hire Oscar or another attorney. ( then they are bound by law to harass your attorney)

Regardless of what you write, they will respond, they will ignore any requests for documentation.

You cannot and will not be able to out lawyer them, your letters will land on the desk of a college intern who drinks to much corporate kool-aid and is trained to only respond with the corporate line of BS. At some point it will get escalted to possibly another troll for more of the same.

If you do not have it in you to go back and forth for them for 3 years, simply hire Oscar to draft you a letter on your behalf and be done with it. Citing law, this , that and the other thing is fruitless IMHO

[Lettered]

good point Buddhapi.  agree completely.

[AndrewRaia]

I actually found the answer from page 7 here - http://www.copyright.gov/circs/circ01.pdf
This i think does a great job of explaining it.

• Registration establishes a public record of the copyright claim.
• Registration allows you to file an infringement suit in court, for works of U.S. origin.
• If made before or within five years of publication, regis­tration will establish prima facie evidence in court of the validity of the copyright.
• If registration is made within three months after publica­tion of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
• Registration allows the owner of the copyright to record the registration with the U.S. Customs Service for pro­tection against the importation of infringing copies.

In other words, wait it out for 3 years, then tell them to buzz of.
If they bring suit, establish fair market at 1.50

[Matthew Chan]

I have no problems making some legal arguments but if you think you can stun them into silence, you will be disappointed. You are dealing with hourly collection clerks who drink the company kool-aid.

Also, if you think any average lawyer stepping in will be more effective than some of us "non-lawyers" who have dealt with this head-on, then you have a lot more reading to do.

Maybe one of the lawyers could chime in lol .

thanks for the feedback. Section 5 says you have to have a copyright to seek damages at all it appears. If they are coming at me for actual they will get 0 cuz I made 0 off the image lol.

[Matthew Chan]

Stinger,

You might be a newbie but I do think you "get it".  Thanks for that. Sometimes I feel we are spinning our wheels on the forums trying to get people to "get it".

I don't even want to respond to certain types of posts anymore. I don't have the stomach for it.

Andrew, I am as much a newbie at this as you.  And I would say that what you propose sounds good to me in terms of two guys going at it out in the playground.

However, when I step back from the situation, I think "Do you really want to quote the law to a law firm?"  That kind of seems like your letting them do battle with you in their arena.  Not that it wouldn't be fun to beat them in their own arena, but why go through all that trouble?

A simpler solution might be to let them know that you are a turnip that they will not be able to squeeze any blood out of.  Or, you can let them know that they are going to have to work hard and even then, there might not be any blood for them to squeeze out of this turnip.

Get your ego out of the way, and get out of this as simply as you can.  I know that's hard to do.  I have trouble doing it.  What getty does makes my blood boil.  And when my blood boils, I want to hurt them.  But in the end, it's the prudent solution.

[Matthew Chan]

I don't think I could make it any simpler than this outline here.

I'll jump in! ( I'm not a lawyer) but I'll be as clear as possible here.. There are precisely 2 ways to stop them from harassing you.

1. pay them ( either the full amount or a reduced amount)
2. hire Oscar or another attorney. ( then they are bound by law to harass your attorney)

Regardless of what you write, they will respond, they will ignore any requests for documentation.

You cannot and will not be able to out lawyer them, your letters will land on the desk of a college intern who drinks to much corporate kool-aid and is trained to only respond with the corporate line of BS. At some point it will get escalted to possibly another troll for more of the same.

If you do not have it in you to go back and forth for them for 3 years, simply hire Oscar to draft you a letter on your behalf and be done with it. Citing law, this , that and the other thing is fruitless IMHO

[Matthew Chan]

Lettered,

You are so funny with your disclaimers. You have been here long enough to know that no one on the ELI Forums is a lawyer with the exception of Oscar. But that doesn't stop the rest of us from putting a "butt-hurt" (per SG) on the stock photo industry.

No need for your disclaimers anymore!  LOL.

and my standard disclaimer: Im not a lawyer and anything I write here is just my layman's understanding.