Used Swishzone.com movie and now Getty Images wants to get me too

[Oscar Michelen]

Thanks Goober for the excellent info.  I will check into the new case and report back.  Let me tell you what I have found out about the earlier case you told us about. It has just been filed by the plaintiff and they are awaiting Masterfile's response. That claim is about a very specific situation so I don't knwo how much applicability it will have to Masterfile's letter program.  What the plaintiff in that lawsuit claims is that Masterfile licensd several dozen images to a company for use in website development.  That company paid Masterfile for the right to use the images.  Masterfile then bought the rights back from that company. Masterfile is now sending out letters to folks who purchased websites from the company during the limited time when it had the right to use the images. I think that a a very clear claim against Masterfile and am anxious to see how they deal with it. I have been in contact with the attorney's office who is handling that case and will keep the forum updated on any progress. We are also waiting to see what happens to the class action brought against Getty by top-notch photograhers.  Both sides have made motions for summary judgment and we will let all of you knwo what happens when something occurs.

[yuleane]

I just got my second letter from Getty....
They have told me this in June:
"I have set a hold on this case to allow time for SWiSH's response. Please be in touch with me by July 10, 2009. If you prefer that they settle this matter on your behalf, please have them contact me."

I did not get in touch with them, however I have send Swish an E-Mail and they pretty much said they can not help me.

Like I said, as a college student me and my husband are not much above the poverty level and just can not pay it... there is no way...
Do you think they would actually take legal action against me?

I mean the images in that flash movie only appeard for not even 1sec. on the site (maybe 1/2 sec and then disappeared) and I can prove that it was fully not intentional (bc I assumened that the liscense swish granted me was enough.)
Also, the website got nearly no traffic and I am not a company, only a private person.

As a reminder, the liscense stated:

All SWiSH movies found in the SWiSHzone.com resources section are open source and can therefore be used or modified for use in any project whether commercial or not. However you are not permitted to resell or redistribute these movies. The authors have supplied these movies to SWiSHzone.com to assist SWiSHers worldwide, it is your responsibility to provide credit to the original authors where appropriate.

Please, I appreciate advice so much!

[yuleane]

I would like to add something too my previous statement.

I think I (maybe) found another case why they may do not have much luck taking legal action against me.
The images were on an embed flash movie.
They have no prove that the images where stored on my computer, they were not full size and only visible for seconds.
This is what a court decided in a Perfect 10 v. Google Inc. case (Source: http://www.citmedialaw.org/blog/2007/sam-bayard/embedded-video-and-copyright-infringement )

"The court wrote:

Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user's computer screen. Because Google's computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any "material objects . . . in which a work is fixed . . . and from which the work can be perceived, reproduced, or otherwise communicated" and thus cannot communicate a copy.

The court went on to conclude that HTML instructions do not themselves cause infringing images to appear on a user's computer screen because the HTML instructions merely convey an address to the user's browser, which itself must then interact with the server that stores the infringing image. Accordingly, the mere provision of HTML instructions, in the view of the 9th Circuit, does not create a basis for direct copyright infringement liability."

I know, there is a difference between google and me, since I put it on there and google uses a robot.
However, I have all these points on my side.
I think that should make the actual damages (if it would have to be decided in court) way lower than what getty wants!?




Here are all my points:

-had a legal license from swish to use this flash movie by a reputable company (Swish)

-Swish had stored the video on their website since 2006, which led me to believe that after 3 years they would have taken it down if it was infringement

-Getty found the video on my no traffic website, but never send a complaint to the very high traffic website swish.com in (proven) 3 years!!
That would conclude that they may intentionally left it there, bc they knew that swish can
a) Fight back
b) Hundreds of people will use the movie and Getty can make more money this way by leaving it there and to sue private persons/ small companies

-did only added HTML line, not actual images

-because they where in a flash movie and not stored on my computer, the picture could not have been copied, reproduced etc.

-I had at no time access to the images, nor did I ever actually copied them

-I did not infringed their copyright intentionally (and can prove it- swish license)

-the images where only visible like 0.5sec

-the website did not receive traffic/ visitors

-i am an individual, not a company

-I never made any profit using this images or sold them etc.



Is that enough that I can stop Getty from threatening me!?!?

[Oscar Michelen]

I think you have a good legal position  I also do not think that Getty will take this on over one image.  I would stop engaging them at this point as they are next likely to send this to NCS recovery - their "collection agent"  If you want to perhaps send a letter offering a token settlement amount (like $100) as a good faith effort to resolve it, that would be one thing.  But thats about it.  I think it is highly unlikely that they will sue you. Good luck and keep us posted