Unfavorable Court Rulings ?? Getty ??

[parkerbenson]

A friend of mine recently received a $600 demand letter from Getty for use of an image in the Stone Collection.

#1  Does anyone know if the Stone Collection registered individual authors as required per the Muench ruling?  I have seen where Getty Images has registered a couple Tony Stone collections, but have no way of knowing if the photo my friend used is registered.  His web designer obtained the image from what he believed was the public domain.

# 2  Does anyone know of any unfavorable court rulings, etc., in the US for people using one or two Getty images?

# 3  Has the Michelson letter approach proved any more successful than simply removing the image and ignoring the demand letter?   I ask this to see if any one strategy is more effective at resolving these issues reasonably.

# 4  Is there a statute of limitations after Getty alleges infringement in a demand letter and before they must file suit; in other words, if they haven't sued within 3 years of a demand letter, are they barred from suing?

The only case I have found regarding one image resulting in a judgment against the private party was in the UK, see below:

Getty Images wins £2,000 settlement over unauthorised web use of photo

OUT-LAW News, 10/09/2009

A removals firm has been ordered to pay nearly £2,000 to photographic agency Getty Images for using a copyright-protected photograph on its website. The company had removed the picture when notified by Getty Images but had not paid a requested fee.

JA Coles, of Manchester and London, used a photograph entitled 'Mother with daughter (6-8) looking at each other and smiling' on its website. Getty Images had a contract to market the picture on behalf of its owner, Canadian photographer Larry Williams.

Getty said in its court submission that it had used image tracking technology to detect the unauthorised use of the picture in late 2007. Getty said that it wrote to the company seeking payment for the use of the photograph. The photograph was removed from the site but JA Coles did not reply to Getty Images' letter or pay the fee requested in int.

Getty Images sued in the High Court for copyright infringement. That case has now been settled and JA Coles has admitted that it infringed copyright by using the image and has agreed to pay damages.

The company has agreed to pay £1,953.31 in damages and interest over the use of the picture, plus Getty Images' legal costs.

As well as the commercial rate for the use of the picture, Getty Images had originally claimed compensation for the cost of detecting the infringement; 'insidious damages' it said were caused because such use of its images undermines its ability to be paid in full for all its images and exploit the rights it has; and additional damages once it had more information on the full circumstance of the case.

There is no mention in the short court order issued by the High Court of additional or insidious damages.

Courts will usually award as damages the normal commercial fee that would have been paid by a company to license the image in the first place in such cases and award additional damages only where a company can show that the breach of copyright was flagrant.

Pinsent Masons, the law firm acted for Getty Images in the case.

OUT-LAW News, 17/03/2009

[Matthew Chan]

Although seemingly bad news, there is some good news in this article.  The stock photo companies are running around trying to tell people they could lose big like get a this huge award plus legal fees etc. The fact of the matter is common sense prevails.  At most, they will pay some nominal fee plus reasonable legal costs.  Unless the situation is really egregious and there is infringement with malice and intent, there will be a reasonable cap to the reward.

The vast majority of the infringement in the U.S. is unintentional and limited to very few images with limited commercial usage.  The benefits gained from usage of the photo is also not huge.  And most photos being infringed on are not registered individually nor super high ticket items either.  Given the holistic view, even if a stock photo company were to sue and win,  I cannot imagine them winning much.

It would be unfortunate but not catastrophic for most people.  And, of course, if they sued someone with limited assets, they wouldn't collect much either.

Matthew

[parkerbenson]

that's what makes me wonder if it's worth arguing them down to $500 and paying $500 to settle the matter and put it behind him, cheaper than absorbing Getty's legal costs if they decided to make an example.

[Matthew Chan]

Yes, it is worth negotiating it down.  $500 is NOT a good deal. I got that deal on my 2nd letter and this was nearly 3 years ago.  Although, the girl working my case probably figured out I wasn't the average letter recipient.  She dropped it very quickly on me.  I still thought it was a crappy deal.  I had a different number in mind.

Matthew

[parkerbenson]

$49-$200 seems reasonable to me given there are no damages, and Getty provides no proof of exclusive license, or individual registration of the image, but I doubt they will agree to this.  so, then it comes down to how many hours it will take personally, or legally, to deal with the issue, and what value those hours have.  unfortunately, this is like any extortion scheme, such as localized towing companies... they will tow cars from a lot whether the car was parked legally or illegally, and then demand payment to release the automobile. the police don't get involved as it's a civil matter. you have to pay to get your car back (ransom) and then sue in small claims court, which is costly and time consuming, and hardly worth the effort for a $100-$150 tow.   it will take legislation to fix this.

[Matthew Chan]

Given that Oscar alone has nearly 600 cases and there have been thousands (perhaps tens of thousands) of letters sent over the years with little sign of court action, STATISTICALLY speaking, most people don't even have a 1% chance of getting sued by Getty. Not even half a percent, really.

Even if Getty went out to sue 100 people tomorrow, STATISTICALLY speaking, you still have a less than 1% chance of getting sued because so many letters have gone out.  However, if you are one of those 100 people, it then becomes a 100% chance!

I am not giving advice what to do but to provide an alternative perspective on where any one person/case stands in the big sea of SDLs! (settlement demand letters)

Matthew

[Oscar Michelen]

Let me answer your questions in order:

#1 Does anyone know if the Stone Collection registered individual authors as required per the Muench ruling? I have seen where Getty Images has registered a couple Tony Stone collections, but have no way of knowing if the photo my friend used is registered. His web designer obtained the image from what he believed was the public domain.

Getty did register the Stone collection but as a compilation. I think the Muensch decision explained that the manner  in which  it was registered means that their is no registration for the individual images in the compilation, but remember this case is just one case from a trial court, it is not an appellate decision. While it has weight because it comes from the administrative judge of the southern district of NY (a copyright heavy courthouse), other judges are not required to follow it though it provides guidance

# 2 Does anyone know of any unfavorable court rulings, etc., in the US for people using one or two Getty images?

Getty has only won by default in the handful of cases they have filed that I have become aware of.

# 3 Has the Michelson letter approach proved any more successful than simply removing the image and ignoring the demand letter? I ask this to see if any one strategy is more effective at resolving these issues reasonably.

I have no way of knowing that.  I do know that once they get my letter (its Michelen, by the way) they cannot contact you directly and have to go through my office so it stops the seemingly endless trail of emails, phone calls,  NCS recovery, Attorney McCormack, Notice of Case Escalation, etc

# 4 Is there a statute of limitations after Getty alleges infringement in a demand letter and before they must file suit; in other words, if they haven't sued within 3 years of a demand letter, are they barred from suing?

I would argue that the 3 years begins to run from when PicScout notifies Getty not when Getty contacts you.  That would be the earliest the statute would start to run.  The latest could arguably be when you take the image down.

[parkerbenson]

thank you, i appreciate your detailed responses

[Oscar Michelen]

Thank you for all your well-reasoned posts and your obvious interest in the issue.  One of the things Matt and I appreciate the most about this forum is that when we started it we never envisioned it would become the central resource for information about this issue.  It has a life of its own and people like yourself and others who contribute to the conversation really make it useful.

[Littlescoop]

This question is directed at Mr. Michelen for clarification please.  In #3 question posted above by Parkerbenson (asking if your letter approach proved any more successful than simply removing an image and then ignoring the demand letter) you responded back you did not know, but that any further contact would need to go through your office.  So my question is this:  I've been searching through a lengthy history of posts on this topic of Getty demand letters and it appears if one receives a demand letter from Getty and does not remit payment, Getty will escalate their attempts to receive payment through additional settlement demand letters, collections, attorneys, etc.  So if one uses your letter approach and any further contact then needs to go through your office, what has your office found with regard to how Getty typically responds to receipt of your letter?  Does your office tend to continue to receive these escalating settlement demand letters, as an individual person/company may very well continue to receive, or has your office found that once Getty receives your letter, they typically tend go away and do not continue sending escalating threats to sue if payment is not received within a given time frame? When I read Parkerbenson's question (#3), my interpretation of his question was that this (what I'm asking in this post) was what he was trying to figure out.  From reading this website and posts, obviously Getty is aware of who you are, so I'm wondering (as I think Parkerbenson was) if your office has found that a letter from you acts as a deterrent to Getty, causing them to cease additional collection actions that they would other partake in.  Thanks so much for any guidance in this regard!     

[Oscar Michelen]

Getty generally at this point does not respond to my letter. There is an understanding between us that once they receive my letter, I understand that their prior responses to the earlier rounds of my letter stand in place as a response to my new letters. We then try to globally resolve a large block of cases at one time at a reasonable figure. Some clients have accepted the figure and moved on, others haven't. Getty has repeatedly stated that they will soon begin suing companies that do not settle (both that are represented by me and that are not). As Matt and I have stated, I think a wave of litigation from Getty is inevitable just because it cannot let the letters and demands be their final position. How they will choose who they sue and don't remains to be seen.  On the other hand, we have been saying this for awhile and no lawsuits have come, so who really knows what their game plan is?     

[Littlescoop]

Hi Mr. Michelen!  Thank you so much for your reply.  That does help!  Can you give me an idea as to what a reasonable figure might be per photo in question?  In searching the forum, I saw a mention of $ 100.  Is that the ball bark you might tend to settle in and Getty may tend to accept?  Also, I've researched the 3 photos in question (in my case) and found they are all very popular photos and when one searches Google images, they come up on a multitude of websites, including other stock photo websites that also sell photos, as well as on websites that offer the free use of the photos on their site.  It appears these photos are not exclusive to Getty, so how then does Getty have the right to demand settlement?  Also, is it at all possible the photographer may have allowed a website to use their photos, knowing that that website offers free use of the photos on their site and the photographer is okay with that?  If so, would Getty still have a legal right for payment if the photographer is aware their photos are available for free on other websites?  Thanks for much for the insight Mr. Michelen!
 

[newzshooter]

The Getty contract bars photographers from selling, or giving away, images or similars on other websites. The only exception is the contract allows photographers to sell limited edition prints that are signed and/or numbered.
My guess is the other sites are probably infringing, as well. If the site is in Asia or a former eastern bloc country, ce la vie, good luck trying to stop or collect on it. (I have a number of images that are now located in countries where I can't enforce my copyrights. I can still enforce my rights if you grab one and use it here though.)
When Getty settles a claim, the photographer receives his/her standard percentage. The contract also states that Getty may pursue an infringement on the photographer's behalf.
If Getty declines to pursue an infringement, the copyright owner has the right to do so. You might be off the hook with Getty, but not with the photographer. On the other hand, most photographers have no idea how to proceed with a claim.
When you refuse to pay, you are screwing the artist, too. but, hey, that's the name of the game in today's world, isn't it? "I got mine, so fxxk you."

[Robert Krausankas (BuddhaPi)]

so is what you are saying is that is getty licenses your image on their site for say 49.00, you get x% of that 49.00 seems right and fair to me.. However if Getty sends out a demand letter for 1200.00 on the same 49.00 image and the person settles for say 800.00, are you saying that the photog still gets the standard percentage of xx based on the 49.00?? If so then GI is screwing you as well. I would hope that if they demand 1200 and settle for 800 that the artist would collect a bigger chunk of this..

Bottom line as a photographer/ hack  myself I respect the rights of copyright owners, and would never intentionlly steal, grab, borrow, ect anyone elses work. Yes there are folks out there that do this, but I think Ia majority are just ignorant of the way it should be done, they figure if it's on goole it's free..then there are those who get tangled up with off shore develope companies that are well known to use anything and everything, because they have no scruples or morals and are looking to make some fast cash.

[newzshooter]

To clarify, it's my understanding that the photographer gets their standard percentage of whatever Getty settles for. So, if it's a $900 settlement, and the shooter gets 30%, then it's $300 to the shooter.
I do have a contract with Getty for stock images, however my style/type of shooting isn't all that condusive for the type of images that are needed/wanted, so I have a very, very limited number of images selling through them. I make enough to take my wife to dinner a couple of times a year, no big deal.
It's not just offshore companies that infringe, I'm in the midst of an infringement suit with a US design company, one that purported to license images through a microstock company. Innocent infringement my butt on that one, they couldn't find what they needed/wanted on microstock so trolled the web to find something and grabbed one of my shots. I've also had to deal with an author, an ad agency, an international travel company, a politician, a couple of major online publishers and a major multinational financial institution. Only three infringers have been individuals, of them two were teenage girls and one was a college student. They got a lesson in copyright and how to ask permission, nothing more.
The law is a double edged sword, sure big companies can use it to intimidate the "little guy", at the same time, it gives a "little guy" like me some very sharp legal teeth against the "big guys". Weaken the law, and you'll see more big companies willing to infringe because they know the damages will be small and worth the risk.