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Author Topic: What you can learn from my 3 year battle with Getty and McCormack IP Law  (Read 5753 times)

stinger

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Background

My name is Joe Stangarone.  I am the president, and a founding member of an international software company.  I have been with this company since 1981.  As a software company, we are extremely aware of things like copyrights and licenses and the like.  We abide by all copyright laws to the best of our ability.

That’s why I was shocked to receive a letter dated February 13, 2012 from Ms. Lauren A. Kingston an attorney at McCormackLegal.com accusing us of copyright infringement.  This letter was the first communication of any kind regarding said copyright infringement from either McCormack IP Law or Getty Images.

A reasonable business person, like myself, might think that if there really were a problem here, that a human being from the company in question, (Getty Images) might contact us first, before resorting to attorneys.  The letter contained three enclosures:

1.   Instructions for Immediate Settlement
2.   Settlement and Release Agreement
3.   Proof of Images Copied and Displayed Without Permission.

Taken in their entirety, my first reaction was that this struck me as similar to the Nigerian Oil Minister scam that had been making the rounds for years.  But this was different.  This emanated from the United States.

I have never been one to trust attorneys who write Release Agreements that require confidentiality of both parties.  This thing smelled like a scam.  But they did go to the trouble of delivering this letter via FedEx, so I looked into it a little further.

When I got to the Proof of Images enclosure, I immediately knew where this had come from.  They included 54 images that we did use in our monthly customer newsletter from 2005 till 2007.  Those images were still on our website, in case anyone referenced an article in one of those newsletters.  The only way to get to those newsletters was to know the specific URL, which we never published.

The immediate settlement price tag was a quick $40,300 which included $1000 in legal fees, all payable to McCormack IP Law for the benefit of Getty.

There was no question in my mind that we had used the images.  In fact, I remembered giving my marketing director, at the time, the ok to do so.  I also remembered the day (2 years later) she came into my office and told me that either Getty had changed their policy, or they had seriously mis-led us and lots of other people into thinking the images in question were a loss leader for them and were free.

She asked, at that time, if she should remove all the images from our servers.  I made the wrong decision.  I told her that we should immediately cease using images from that source, but that I didn’t think we needed to remove the history of what we had done.  After all, it looked to us like Getty had changed their policy with respect to the images.  I knew that there were no direct links to the newsletters on our web site.  The only way anyone would ever see such an image was through a google search or knowing the exact URL.

NaĂŻve me.  Never did I think that they would employ bots to scan our computers looking for those images 5 to 6 years later.  If I were not still here, they would likely have been paid off by my successor.  But I knew that we had been had.  And this was not going to be easy for them.  Thus began my three year battle with McCormack IP Law.

I am not going to take the time here to detail that three year battle.  Instead, I am going to summarize what I think I learned in those three years, in a way that might be helpful to anyone else caught in a digital image copyright trap.

Before relying too heavily on my observations, remember that this world is a changing.  Technology changes, laws change, google search results change, Getty or McCormack IP law can change what they choose to do and how they choose to do it at any time.  What I am detailing for you is the state of this market as seen through my eyes from mid-February of 2012 through mid-February of 2015.  Taken in that context, I hope that these observations will be of great benefit to you.

Things I learned in my 3 year runaround with Getty and McCormack

1.   Getty is a for profit business.  They are in it for themselves.  Though they may claim to be working on behalf of the artists they represent, make no mistake, they pursue Getty’s agenda, not the artist’s.

2.   Getty is not necessarily well managed.  This does not mean that upper management is in any way stupid, rather they have neglected a number of details along the way.  Those details are the reason individuals have a fighting chance against Getty’s copyright trolling practices.

3.   Getty’s Copyright Compliance group remind me of the salesmen in the movie Glengarry Glen Ross.  I expect, based on what I have seen, that they are paid next to nothing for their time, and mostly on commission (for results).  The poor grammar, misrepresentations of the law, and utter failure to address any issue other than how much money they will bring in, attests to the fact that they are not well managed – and focused only on their end game.  Note:  I have had no interaction or communication with this group.  What I know about Getty’s Copyright Compliance group was learned from monitoring their activities through a number of different web sites over the last three years.  I was getting myself ready in case McCormack IP Law ever referred anything back to Getty.  This never happened in my case.

4.   McCormack IP Law is where the elite survivors of the Copyright Compliance group might end up, particularly if they are willing to get a law degree.  In researching Ms. Lauren Kingston (the attorney who contacted me on Getty’s behalf), I learned that she used to work at Getty (maybe in the Copyright Compliance Group), before going to law school and ending up at McCormack IP Law.

5.   As a businessman, I consider the McCormack IP Law group to be the dregs of the legal industry.  Getty may treat them with the same disregard.  In over three years of following these guys, I have never seen McCormack IP Law represent Getty in court.  McCormack appears to be used as a collection agency.  They can get around collection agency laws because they are attorneys (allegedly representing their client (Getty Images)).  The legal threat that goes with that helps them collect in a certain percentage of cases.  I believe that Getty likely pays them more like a collection agency than like a law firm.

6.   It appears that McCormack IP Law uses the name of their firm to scare people into paying.  In many cases (not mine), the Copyright Compliance group says if you won’t pay by a certain date, we will escalate it to our attorneys.  Then a letter or two from McCormack IP Law makes it look like that escalation has taken place.  Many people likely cave in to this tactic.  My belief, is that the McCormack IP Law group is also paid on commissions based on cash collected.  They seem to look for low hanging fruit.  Let them know that you are not a pushover, and they reduce the time and effort put into collecting from you.  Show fear and a conscious and they will be on you like a pack of hyenas.

7.   When I got started talking to people about my case, many cautioned that I should negotiate the best settlement I could and pay up because a case involving 54 images was certainly economically worthy of going to court.  People thought it would be worth Getty’s while to spend the money on court filings and attorney’s fees because they stood to collect millions.  So why didn’t they sue?  I think because Getty is smart enough to know that they do NOT always have their ducks in a row.

8.   A good example is the ruling in the Getty v. Advernet case ( http://www.scribd.com/doc/75525341/Getty-Images-v-Advernet-Decision-Southern-District-of-NY ).  Here, you have a defendant who vacated the case, yet the judge would not hand Getty an over the top victory.  Instead, the judged dismissed the action, with prejudice.

9.   Getty doesn't register all of its images. 

10.   Getty registers many of its images improperly.  Some jurisdictions have ruled that collections of images don’t count as a way of registering just one.  Getty has used collections to avoid tedious and cumbersome paperwork.

11.   Getty's claims of "exclusivity" in its contracts with its contributors are not always true.  Although their click through agreement might state exclusivity, said exclusivity doesn’t really exist under the law if the photographer signed a similar agreement with another agency, because only one entity can legally have exclusivity over any digital image.  Some jurisdictions have even questioned the validity of the click through agreements, because you cannot have a valid legal agreement without a signature for both sides, and Getty never signed or clicked through on each image and each agreement.

12.   Getty knows that their strategy has evolved over the years with the growth of the internet and the changes that have gone about in their business.  Where their strategy has changed, they have covered their tracks by doing things like instructing the Wayback Machine (online internet archive) to remove certain of their pages from the archive prior to 2009.  Why would a company in the business of selling internet images ever want to remove their history?  Maybe they changed their strategy to no longer offer “loss leaders”?

13.   Although I do not always agree with his politics, it is clear to me that Oscar Michelen is an excellent attorney and an extremely nice human being.  He stands by what is right and I have seen him stand by his friends and those he never knew, to right wrongs committed by the legal system.  In many cases, he has done this pro bono and self funded his expenses.  These are not things he had to do.  These are things he did to make the world a better place for others.

14.   I would not hire Timothy McCormack or any attorney working for him to do any legal work on my behalf and I would strongly warn any friends or acquaintances away from them.

15.   I am not one to make negative comments about people, but based on the things that I have seen Timothy McCormack do in this industry over the last 3 years, I would stay far, far, away from him, as a person, as well.

16.   Getty and McCormack’s pursuit of copyright infringements has changed through time.  I believe that some of that change results from business not going their way.  Some of that change results from court decisions and changes in the digital image industry world-wide.  Much of that change also results from people and organizations, like ELI, standing up to them. 

17.   Oscar Michelen’s letter program has modified Getty’s approach.  Lately, Getty seems to have lowered their asking price for single infringements enough to  try and lure people away from Oscar Michelen’s letter program and into directly settling with Getty.

18.   Ian Cohen’s (Scraggy on ELI) victory in Israel has changed Getty’s tactics in Israel at the very least, and likely in many more countries.  Here is one link.  http://www.extortionletterinfo.com/forum/getty-images-letter-forum/class-action-suit-filed-against-getty-images-master-delegate-in-israel/?wap2  Feel free to search ELI for more on this battle.

19.   Matthew Chan’s PR and SEO campaigns to expose Getty and McCormack IP Law have not only caused pain to both those firms, but have changed the way they operate.  It’s easy to see.  Just Google McCormack IP Law.  The results do not paint a flattering picture of a law firm.

20.   Greg Troy’s campaigns to get the tactics of Getty and McCormack on the radar of lawmakers and legal overseers at all levels have not only changed how Getty and McCormack operate, but have slowed them down tremendously, because they can see what they have to lose by continuing their behavior.  http://www.extortionletterinfo.com/forum/getty-images-letter-forum/an-experiment-against-getty/  I apologize for the length of its thread, but if you are caught in the Getty-McCormack web, I think it is worth reading TWICE.

21.   Robert Krausankas’s campaign to expose those who work for these firms has cost both firms employees and the time, effort, and money it takes to train and re-hire positions.  http://www.extortionletterinfo.com/forum/getty-images-letter-forum/ongoing-list-of-copyright-trolling-firms-and-those-associated-with-them/  Robert is also a Search Engine Optimization wizard.  His efforts to discredit trolls he crosses paths with are legendary in ELI circles.

22.   Each and every person who has ever put up any kind of fight, or who has supported another in their fight, has certainly been noticed by Getty and McCormack.  That’s quite clear by their change in behavior over the last three years.

23.   Don’t react to anything you may get from the likes of Getty or McCormack IP Law emotionally.  This is what they want.  Don’t be driven by false deadlines they give you.  Take the time to distance yourself enough from their accusations to remove the emotion from your decision making.  Take the time to educate yourself on exactly what is happening before responding. 

There are lots of options.  Find the option that best suits your style and your situation.  Now, 3 years later, I am so glad that I did not take the advice of people advocating that I should settle because of the sheer size of their claim against me.  It was well meaning advice, but I could not, in good conscious, give in.

I do not know where this industry is going to go in the next three years.  I do know that for a while I thought there was so much activity that this would certainly get in front of lawmakers and the opportunity to extort monies from innocent infringers would be removed from the law.  Now I am not so sure.  Things seem to have slowed to a point where the impetus might not be there.  I do know that even though my Statute of Limitations is up, I was so riled by this business that I will keep my eye on what’s going on and lend my support to friends that I have made in this industry for years to come.

« Last Edit: February 17, 2015, 11:16:36 AM by stinger »

Jerry Witt (mcfilms)

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Re: What you can learn from my 3 year battle with Getty and McCormack IP Law
« Reply #1 on: February 17, 2015, 11:09:58 PM »
Congrats Joe,

I know that even though you were more than prepared should they decide to pursue you, it is a relief not to have to dedicate mental bandwidth to dealing with them. Even though you are out of the woods, I hope you continue to post here.

I imagine we will be hearing from quite a few more people who have reached the end of their 3-year statute of limitations in the near future.
« Last Edit: February 24, 2015, 02:24:02 AM by Jerry Witt (mcfilms) »
Although I may be a super-genius, I am not a lawyer. So take my scribblings for what they are worth and get a real lawyer for real legal advice. But if you want media and design advice, please visit Motion City at http://motioncity.com.

stinger

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Re: What you can learn from my 3 year battle with Getty and McCormack IP Law
« Reply #2 on: February 18, 2015, 10:07:02 AM »
Thanks Jerry!

Maybe some sort of list of those who didn't get sued or who beat the SOL will relieve some of the stress from those who get a new troll letter.

Greg Troy (KeepFighting)

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Re: What you can learn from my 3 year battle with Getty and McCormack IP Law
« Reply #3 on: February 18, 2015, 04:34:05 PM »
Congratulations Joe! Very well written and informative article, thank you for all you do here helping out new letter recipients.
Every situation is unique, any advice or opinions I offer are given for your consideration only. You must decide what is best for you and your particular situation. I am not a lawyer and do not offer legal advice.

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zazen

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Re: What you can learn from my 3 year battle with Getty and McCormack IP Law
« Reply #4 on: February 27, 2015, 11:16:54 PM »
Damn Joe-  to look down the barrel of a 54-image infringement and not flinch takes a major pair. Your account sums it up beautifully, and (with no guarantees) gives me a tremendous amount of vicarious satisfaction.

I have personally been the proud recipient of 2 Getty Letters and 3 followup McCormacks  for a 3 image infringement. a phone consult with Matthew put me back on the road to sanity. Ive given them zero response or acknowledgement..  may use Oscar's Letter program, haven't decided yet.

Having watched McCormack in action at Matthew's hearing (what a kook, invoking cross burnings in GA in front of African-American justices) helped put my mind at ease, and your account is the absolute icing on the cake, and so succinctly sums it up, that it deserves its own page. 
« Last Edit: March 25, 2015, 10:27:40 PM by Matthew Chan »

stinger

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Re: What you can learn from my 3 year battle with Getty and McCormack IP Law
« Reply #5 on: February 28, 2015, 09:33:17 AM »
Thanks for the kind words zazen!

Although it may have felt like staring down the barrel for a short time, I came to realize that, although my firm was larger than many that Getty pursues, it was them, not me, that has the "deep pocket" problem.

I felt like they led us into this, and that if they chose to pursue my firm, they were going to be very publicly exposed no matter the outcome.

Luckily, I think that Getty too realizes this.  I expect that they allow McCormack to pursue infringements that old, but they stay on the fringes and make sure it doesn't go far enough to harm them.

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Forgive me, I am terribly late to this discussion. I want to add my comments to add a dimension that is not commonly or publicly known.

First of all, let me congratulate Stinger for crossing over to the "bright side" of the statute of limitations. He can now speak freely. Stinger has been an ELI warrior in ways very few people know.  Stinger is a smart businessman and he did his own assessment of the situation. He also fought back in ways people did not know. Stinger, like most of us, became angry and disgusted in Getty Images and their legal team's obnoxious conduct.  They wanted to use their overbearing name and force unreasonable and unrealistic settlements against all of us, large or small, without little distinction or consideration.

Stinger shared with us how he punched by filing a state bar complaint against one of McCormack's associate lawyers. From what I understand, Stinger's complaint was so powerful and effective, McCormack's associate lawyer had to hire a lawyer for HERSELF over Stinger's complaint.

Stinger also financially supported me and ELI through a major financial contribution during my legal fight against the Dash Poet during the appeals process. Although Oscar entirely donated his legal services on behalf of me and ELI, there were still secondary legal expenses I faced as the owner of ELI. Stinger, UncleJohnsBand (UJB), and April Brown were among the largest ELI financial contributors during my fight through the GA Court of Appeals and now the GA Supreme Court. None of these folks had to contribute to my fight but they could not stand idly by and let me or ELI get defeated.

I don't believe I am speaking out of turn that ELI has the been the single, toughest and rebellious stronghold against stock photo copyright extortionists. Certainly, there have been dozens of websites (many who refer links back to ELI) that have been launched and created to complain about Getty Images and their ilk. But I believe we are the ones who took the stock photo extortion phenomena most seriously and actually put a plan together to combat it and defend non-willful, unintentional infringers.

In fact, I remember over a year ago when I asked Stinger why he was making such a large contribution to my appeal fight against the Dash Poet. He plainly said that losing ELI as a resource would negatively impact him and every other victim.  If ELI were to fall, it would simply not be good for him and scores of other people. He implied if ELI disappeared, it might become hunting season for extortion letter victims.  I never viewed it that way before. It was his insight that motivated me and enlighten me the larger impact of ELI.

I thank Zazen's comments here for a few important reasons.  One, he thanked and acknowledgement Stinger's story and contributions. Stinger has not been acknowledged enough and I am glad he has stepped out to take credit he greatly deserves. Because it allowed me the opening to brag about his huge behind-the-scenes support that the public doesn't see.

Another reason I commend Zazen is that he took interest in my appeal case now sitting with the GA Supreme Court. He watched the videos himself and saw how pathetic Timmy McCormack was and how at least three Justices took him and his co-counsel, Elizabeth (Betsy) McBride to task. Timmy is a joke to us and will never be respected.  Those videos will forever haunt their professional careers. No one held a gun to them to work the case.  On the small  chance that my legal adversary wins against my appeal, it won't be because of their oratory or lawyering skills.

The other reason I thank Zazen is that he is one of a small group of people who signed up for the ELI Support Call program. We have never done the hard sell on it and rarely bring up the necessity for ELI Financial support, or the intangible benefits of signing up.  We let it stay as a background resource for those who feel they need personalized service and a customized discussion of their situations.

But the honest truth if ELI isn't financially supported, many of the resources that are available today couldn't continue. The ELI Support Call is an important gateway to other resources I have. It is also a great way to start a new business association that goes beyond extortion letters.

People who sign up for ELI Support Calls get a personal connection to me for the life of their case, sometimes even longer.  Some people become Linkedin associates or Facebook friends. I am only an email away and act as an informal connector to Oscar and his law firm for those who want the extra helping hand. I am also a connector to any other resources I can reasonably offer to assist them in their case and business situations. I am clearly not a lawyer but I am a business strategist and those who sign up get the benefit of strategy insights.

And without financial support from ELI Support Calls from people such as Zazen, I would not be able to dedicate as much of my personal time such as writing this post and other ELI-related work so that EVERYONE else benefits. To Zazen, I appreciate the unsolicited positive feedback you shared with everyone.

Stinger understood the need for ELI's longevity. I don't like to fear-monger but EVERY extortion letter victim should have a vested interest in making sure ELI survives for at least another three years, the statue of limitations for every copyright infringement claim. There are many of us that believe the if ELI were to ever come down or get taken down, it would become hunting season on many extortion letter recipients. They would be far more aggressive than they are today.  They know we have many eyes and ears that are paying attention.  There is strength in numbers, shared resources, and the club of the First Amendment on our side.

We have had a few people over the years get more than one extortion letter because of work they did 5-10 years ago that resurfaced recently. If you are a long-standing web developer, you want ELI to be around for MANY YEARS because a stray image on a  website developed years ago can rear its ugly head. It happens because I have talked with these people.

My post is long enough. Again, thank you Stinger and Zazen.
I'm a non-lawyer but not legally ignorant either. Under the 1st Amendment, I have the right to post facts & opinions using rhetorical hyperbole, colloquialisms, metaphors, parody, snark, or epithets. Under Section 230 of CDA, I'm only responsible for posts I write, not what others write.

 

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