We are the latest victim of the Getty Image extortion scam

[Sandy443]

I don't seem to find the place to start a new post so I am joining onto this one since I am the latest victim of Getty Image insanity. 

In November I got my first letter for one image. They want $1225.  I panicked.  It was Thanksgiving and here is this thing in my mailbox that I have to figure out.  I couldn't deal with it during the holidays. Last week naively thought it might have gone away.  Wrong.  Today, I got my second letter.  Time for action.  It was a screen capture, never was a watermark or other foreboding indication of ownership on the photo or screen area.  I used it in a blog post, really for educational & awareness purposes, to illustrate theories behind a therapy used in a small health facility.  I can write business letters and have worked with attorneys and federal and multi-state consumer credit laws/regulations for many years before getting into the health industry.  The legal aspect doesn't scare me, I just don't know where to start with the letter.  And now I'm loosing sleep over it.

[lucia]

First: it's best to know your position before you communicate with Getty.  We are all under the impression that in the past-- and likely the present-- Getty relies on letter recipients volunteering information that could be used in a case against them. So, it's good you haven't written them  yet.

Once you write the letter, everything in it should be the truth. But just as their letter their position, yours can give yours. And just as they don't tell you everything they do or don't know, and they volunteer no information that might favor your case,  you also don't have to tell them everything you do or don't know and you don't have to volunteer stuff that might be in their favor.

For the next few days, you are on "datagathering" mode-- done without communicating with getty.  The first things you need to do:

Is your blog hosted in the US. The relevant law matters for some questions.

Have you looked the image up number in the Getty catalog?  If we know what the image is, we can help you figure out if it's registered at the copyright office either individually or as a collection. Getty Images are often not registered at all, and when they are registered, they are sometimes only registered as a collection. This makes their legal position weaker, limits how much they could possibly collect and so on. So you want to know details about the registration. 

We can also look into similar images-- which we will want to do.

Do you know if you hotlinked the image or hosted it on your server? ( If you hosted on your server, do not post that information publicly and do not ever volunteer it to Getty.  But you need to know for your own sake. If you are in the US and-- hotlinking-- that is displaying an image on another sever-- means you have no worries.  We can tell you what to write back.)

Have you removed the image from displaying in the post? (And if from your server from your server?) You should remove the image from displaying.   Later when you communicate with Getty, say you have removed the image from the blog post as a courtesy to them or something similar. (If you hosted it on your server, do not volunteer that information. If you did not host, do say that explicitly. )

Most of the following are unlikely to matter, but it's worth your knowing for your own sake: In your blog post, were you discussing the image itself? (This could matter for "fair use". ) Does your blog run ads? (This could matter for fair use.) Is it affiliated with a business? (Also could matter for fair use.)

There are other things you will want to do, but which things will depend on some of the answers above.   

[Sandy443]

Thanks Lucia !!  Wow, I actually feel mobilized versus frozen.  OK I'll sift through your questions and gather info and report back early next week.  OMG, Thank you SO much!! 

[Robert Krausankas (BuddhaPi)]

Great post by Lucia!, thanx for chipping in!, I'll also add to look thru the forums, you will find many examples of what to do, versus what not to do, as well as how others have approached this. Ultimately you'd like to shut them down in one shot, but this may not happen and you may get more letters and you might even be "special" enough to get one from Timothy McCormack, Getty's outside "counsel" ( I use this term very loosely)....again don't panic, and be prepared to possibly deal with this for the next 3 years ( statute of limitations).. If you feel you don't have it in you to last 3 years, the letter program is a good option as well.

Thanks Lucia !!  Wow, I actually feel mobilized versus frozen.  OK I'll sift through your questions and gather info and report back early next week.  OMG, Thank you SO much!!

[lucia]

Ultimately you'd like to shut them down in one shot, but this may not happen
May not? Even if they are totally wrong, their first response will likely to be to explain why you are wrong and demand money.  I explained I hotlinked and cited Amazon v. Perfect 10 twice before they went away.  They did not respond to the 2nd letter admitting that to the extent there are any precedents, the US precedent is that hotlinking is not a copyright violation.  (And never mind that I have a number of other points in my favor which would likely make their case bogus even if my case wasn't just hotlinking. )

So, at this point, in principle, they may be sitting in their offices contemplating suiing and may suddenly decide to sue. (Which would be nus on their part.)  In two years the statute of limitations to runs out and they will be precluded from suing for that claim. 

So... everyone -- no matter how sound their first letter to Getty is-- should count on getting at least one response that tells them they do own Getty money. Because that's what happens. 

That said: Each case is different. Some people did copy. Potentially, some day, we'll see the person who copied the entire Getty Catalog and was selling bogus licenses in parallel..... But so far, we mostly seeing letters to hobby bloggers, very small businesses (who are often bankrupt) who posted a fairly run of the mill non-descript pictures.  Depending on the case-- and the personality of the letter recipient, they can either communicate with Getty or hire Oscar.

[Oscar Michelen]

Please don't lose sleep over the letters.  Read through the forums, you will see that single image letters have never been put into suit and they cannot hurt your credit rating.

[Sandy443]

Here are the answers to the data gathering questions...Thanks so much again:
Is your blog hosted in the US.   yes

Have you looked the image number up in the Getty catalog? 
Yes,  Here is the link to the image in their catalog
http://www.gettyimages.com/detail/photo/man-standing-on-ladder-cutting-rose-bushes-high-res-stock-photography/sb10068280c-001

It says License Type: Rights - Managed

Can someone on the forum look up the registration?

We can also look into similar images-- which we will want to do.
Not sure why we'd do this?

Do you know if you hotlinked the image or hosted it on your server?

I was unfamiliar with the term hot linking.  After finding out, no I didn't hot link to the picture.  I used Google Images to find a picture of a ladder (there are bazillion).  As mentioned, there was no water mark or catalog numbers or anything foreboding like prices and license info.  I use "Snag It" to copy my client's posture photos, before and after the therapy to add to my site. Unfortunately when I got the first letter I immediately deleted the image AND deleted the paragraph(s) that referred to it.  I remember the essence of what I was talking about but the language got deleted too!  I can see Getty has a screen capture of the image and language but the text is so tiny, no way I can read it from what they sent.

I am a therapist providing a niche therapy - essentially it is a method of Posture Alignment that is a customized exercise based, highly specialized therapy not covered by insurance.  There is a specific profile of client, the kind who does not want surgery or drugs and has tried all that there is to try out there with no success.  Mostly they are pretty motivated to do what it takes and it is hard work.  By that I mean, the exercises are easy but the motivation to do them can be a problem for many.  It is 100% the client's responsibility to do their exercises each day and to do them precisely and to return in 2 weeks for reassessment of progress and a new or modified set of exercises.  They mostly do 8 sessions or 16 or just keep going, depending. So compliance is key, it is a make or break proposition. Follow the program and succeed or don't and nothing will change.  SO.....that said.... I do zero advertising, I am NOT in the phone book.  I am not looking to SELL or promote my services because it is a big waste of time, the wrong kind of person shows up. 

99.99% of my clients come from referrals.  Anyone who comes in off the street (I have a small store front) never comes back and signs up-they are kicking the tires and aren't desperate like most of my clients. My front door is locked 65% of the time.  My clients are astounded by the results and they tell others.  Some of  those people check out my website to get more information. 

The website blog is there to help people understand how the therapy works.  The ladder comes into play because it is an image I use to draw analogies between the human body and the shape of a ladder.  The therapy is based on the fact that all humans (except 5%) were born with an original blueprint design.  All load bearing joints are lined up vertically and level horizontally.  Because muscles move bones, over time injury and many other phenomena, muscle tension becomes imbalanced and pulls bones and joints out of their original proper position.  The therapist knows where the causes are and the posture therapy stimulates targeted muscles and areas to work properly again and the muscles will return joints and structure to the correct position. 

The ladder image was used to help the reader understand that the ankle, knee, hip and shoulder joint must be aligned horizontally and vertically just like the side supports and rungs of a ladder.  Ladders are unstable, weak and faulty if they loose that design position, very strong and functional if they maintain it.  If the body looses it's design position, there will be wear and tear over time and then function degrades, pain and problems will cascade through the structure.  That is why I used that image.  Why I liked the image with the man standing on the base with only his legs showing, don't know. 

So i don't sell ladders or rose bushes or men's boots -shown in the image!  I use the imagery when I explain how the body should be positioned and how it is possible to return it to that original position.

( If you hosted on your server, do not post that information publicly and do not ever volunteer it to Getty.  But you need to know for your own sake. If you are in the US and-- hotlinking-- that is displaying an image on another sever-- means you have no worries.  We can tell you what to write back.)

I don't use physical Ladder images anywhere else.

Have you removed the image from displaying in the post?  Yes.
In your blog post, were you discussing the image itself?   Yes, explained above.
Does your blog run ads?   No
Is it affiliated with a business? No

[lucia]

Ok..
I searched for both Peter Cade (photographer) and Iconinca (collection) here: http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First    I didn't find anything promising.  That doesn't mean it's not registered-- it could be registered under "getty" or something.  But it suggests it might not be individual registered.

The photographer himself seems to have been in business for 15 years.  ( http://www.petercadephotography.co.uk/pcphnewabout.html )  Many of the photographs on display at his site are considerably more attractive than that one.

Others can see if they can find the registration. (Not being registered would be in your favor. )

Photographer:    Peter Cade
Collection:    Iconica
Credit:    Peter Cade

[Sandy443]

You're saying the Copyright office doesn't have it registered under his name or the collection name but it could be registered to some other label/wording?  But wouldn't it have to include his name?  If my name were Sandy Smith, I could register a photo under some other name?  Sandy Jean Smith?

[lucia]

Sandy--
First: I think if the photographer registered individually, it would be registered under his name. I found no such record-- but that could be my lack of competence. (Still... it's just a name and keyword search. So.. looks like zip.)

I'd like to elaborate:  The point of looking things up is to figure out what "the worst that could happen" is if Getty sued (which they probably won't for 1 image and so on.)   It's also figuring out what you will want to put in a letter when you write Getty (which need not be extremely soon. But it would likely be good to write them within a few weeks.)

FWIW: I got a letter Thanksgiving weekend 2011. For me, knowing the worst that could happen is helpful for deciding how to go forward.

On this front, it's worth knowing whether something about your case has a feature that could drastically limit what Getty could possible gain by suing you (and likewise, what you could lose.) Obviously, if they can't gain anything, and you can barely lose anything, that gives you a lot of breathing room when negotiating for any sort of settlement.  (You did copy-- so I think generally Oscar advises offering a reasonable settlement. But your idea of reasonable and Getty's are likely not to align too well. And obviously, you wouldn't want to know what the image is actually worth before offering anything. Some images are worth a lot. Others... on... $5 for a lifetime license is probably generous!)

There are generally multiple issues that would limit how much Getty could *possibly* win-- and that limits how much you could possibly be held liable for.   How much Getty could win (if they sued-- which they almost never do) is affected by whether the copyright was formally registered and also whether the registration is done properly.  In the past (and possibly even now) Getty and other stock companies have tried to use "mass registration" where they will registered hundreds or thousands of images as a "collection".  This makes the registration -- such as it is-- hard to locate.

But beyond being hard to locate, registering as a "collection" those registrations often have flaws (like being organized in ways that make it difficult to tell which images were intended to be contained in the collection, figuring out who the photographer is for each image and so on.)

There has been a lot of discussion at this site about the manner in which things are registered. It's not clear registration as a collection will be interpreted as being a valid registration for an individual image if Getty were to sue you  for using an individual image (which they probably won't. Part of the reason the probably won't is precisely that they know that courts might deem their registration flawed because its registered as "a collection" and not an image).  Tentatively-- it looks like that image might either not be registered at all or registered as "a collection" and not individually.  We need to firm this up a bit-- it really does help to find the 'registration' so we know. But I haven't found the registration for the collection. It does help to find that when we can!

Note that the photographer works in the UK.  I have no idea what might happen if it's registered in the UK. Oscar quite likely will know though.  If registration in the UK "counts" we'll have to figure out how to look into that.

For now: Some further hunting is required. But one thing you are going to want to do is make a list of things that you will eventually put in your letter to getty. One of those things will be requesting they supply you the copyright registration information so you can verify the image is copyrighted. (They will almost certainly refuse to give this to you. You still ask for it. )

As for tidbits of information: I'm partly posting because other readers might know how to find things better. The collections... can be difficult!

[lucia]

I could register a photo under some other name?  Sandy Jean Smith?
If it was registered as Sandy Jean Smith, it should still show up on a search for Sandy Smith.   There can be issues if photos were taken as "works for hire". But I think if the photographer is Sandy Jean Smith, that name should still show as the creator/photographer/author etc. The owner might be someone else.

[Robert Krausankas (BuddhaPi)]

don't get to worked up, Getty is not going to sue over 1 lousy image...another thing to keep in mind, is that the contract this artist has with Getty, if any at all, would need to include a clause giving Getty the power and permission to sue, if not only the photog could sue and chances are good he's not going to fly his ass over here from the UK in the hopes of being awarded 200.00 if he's lucky..and just because someone sue and wins doesn't mean money is ever exchanged.. I promise you if anyone sued my business and won, they would collect exactly ZERO doallrs..

[Sandy443]

Here is the draft 1st response to Getty--

I received the Unauthorized Use Demand Letters dated November 27 and December 29, 2012 (the “Demand”) concerning Catalog Image xxxxxx.  

I have never received such an fraudulent masquerading request.  Pardon me if I took some time to understand exactly what you are demanding.  Please note I have removed the image I acquired from Google Images and will replace it with an image I produce.

 I acquired my image from Google Images not from Getty Images.  Please provide proof the actual image I used from Google Images, having no watermark, no price or disclaimers or warnings or notices of ownership, belongs to Getty Images.  There was nothing to indicate the image from Google Images was NOT public domain therefore I did not take anything from Getty Images. 

I do not advertise my business at all.  Not on the web nor in any manner.  My business is not in the phone book.  My business is 99.99% based on referrals. I don’t have to promote or market my services.  I have physicians who refer their patients to me.  Rarely someone walks in from the street and becomes a client.  The referrals come due to the tangible visible changes to a client’s body and elimination of client pain not because of a Ladder image from Google Images in one blog post.  The image was used for education purposes on my website in a article.  The Google Image of the Ladder was used to make an analogy about human body biomechanics demonstrating the position of human load bearing joints should be optimally positioned, like that of a ladder. 

Based on my use of an unmarked Google Image, I did not use unauthorized property of Getty Images nor have I harmed them or their associates.  I am sorry Google Images  posted unmarked images for the public domain that you have paid photographers for and are now attempting to license.  This matter and Getty Images case is now closed. 

[Robert Krausankas (BuddhaPi)]

don't send that letter...Lucia first repose to you stated , not to admit anything, and in your first sentence you admit grabbing the image from google..Google DOES indeed state that iamges may be copyrighted, you're shooting yourself in the foot here!

you also admit that you used the site on your "business" site, regardless if you advertise or not, it's a business....strike 2!

it's not on you to "prove" that you used their property or not, that falls on THEM...strike 3!!! delete this letter, it will only make your situation worse, they will know and understand they are dealing with someone who has no clue..sorry to be blunt, but Getty love people like your self, as they are much easier targets...

keep reading until you fully understand what you are dealing with, if you can't deal with this for 3 years, you might consider hiring Oscar or at the very least speaking with Matthew..

"Based on my use of an unmarked Google Image, I did not use unauthorized property of Getty Images nor have I harmed them or their associates.  I am sorry Google Images  posted unmarked images for the public domain that you have paid photographers for and are now attempting to license.  This matter and Getty Images case is now closed.  "

Google is NOT required to mark imeages, and google does not serve image, they only link to them, Google does not state anywhere that any images are "public doamin"....Rest assured Getty Image will NOT close this case based on your arguments, as they are weak, and you are making it easier for them to back you into a corner...

[Sandy443]

Can I say in general terms the image was unmarked from the third party source it came from and I had no idea it was copyrighted.  (Lame)

Then put the burden on them to prove to me, how they calculated demand amount, to produce the proof of registration?

If I used the image on a business website regardless even though it was not for promotional purposes or advertising....it's still a business and there is no way to separate any image's purpose inside the business website? 

So are you saying there are no defenses that will result in paying nothing.  I'll have to pay something but it may be very little if the copyright is not registered?