A LITTLE BACKGROUND:
===========================Last week I received my very own Getty extortion letter. It is dated April 26, 2012, and the letter alleges copyright infringement of a single image on my company website. The screenshot they include shows their image displayed at a resolution of about 180 x 180 px in the right nav, below-the-fold, on a secondary page of my company website.
Below is the alleged image as it appears in the Getty Images gallery and my proposed response to the letter. I would love the community's feedback on the response. Is there anything I write that I shouldn't? Is there anything I should add to the letter?
As you can probably tell from the contents of the letter, I've spent the past few days reading the forums and watching the ELI videos. One thing I haven't found, however, is a community vetted, legally safe and sound, sensible reply to the Getty letter.
I know there is no possibility of creating a one-size-fits-all reply as each case is different. Nonetheless, I hope that this thread will grow to provide the foundation for other Getty letter recipients to build upon. Thank you all, in advance, for you feedback!
As I fully expect Getty to reject my reasonable offer, I just contributed my proposed settlement amount to ELI!
THE ALLEGEDLY INFRINGING IMAGE:
===========================Getty Image No. 200133214-001 (The Image Bank collection)
http://www.gettyimages.com/Search/Search.aspx?contractUrl=2&language=en-US&family=creative&assetType=image&excludenudity=true&p=200133214MY PROPOSED RESPONSE LETTER:
===========================May 7, 2012
Copyright Compliance Team
Getty Images Inc.
PO Box 84434
Seattle, WA 98124-5734
Getty Case Number: <<MY_CASE_NUMBER>>
To Whom It May Concern:
Thank you for your letter dated April 26, 2012 notifying <<MY_COMPANY>> that its website <<MY_COMPANY_WEBSITE>> may be in violation of an image copyright allegedly represented by Getty Images (The Image). To clarifiy, the website <<MY_COMPANY_WEBSITE>> is wholly owned and operated by <<MY_COMPANY>>, a <<MY_US_STATE>> corporation of which I am the founder and sole employee.
I assure you that if the alleged copyright infringement did take place, that it was entirely innocent and unwilling. As a good-faith gesture, and until this matter is definitively resolved, I have removed The Image entirely from the <<MY_COMPANY_WEBSITE>> website and, while admitting no guilt or wrongdoing but to close this matter, am prepared to make a reasonable compensation offer based upon well established stock photo market conditions.
The fair market price for an unremarkable photo of a single lawn sprinkler with no models or architectural features represented is well established at between $1.38 and $5.01. Your subsidiary iStockphoto has dozens of nearly identical lawn sprinkler photos offered at a price of between $1.38 and $1.67 for the “Xsmall (425 x 282 px)” size, which is nearly four-times as large as the lawn sprinkler photo displayed in your screenshot of the <<MY_COMPANY_WEBSITE>> web page where the alleged infringement occured.
Some of the functionally identical lawn sprinkler photo matches from your subsidiary, iStockphoto:
A quick web search identifies a number of comparable photos offered at similar prices by other prominent stock photo websites Bigstock, Pond5 and Shutterstock:
Based upon hundreds of easy to identify comparables, I calculate the fair market price for an extra small, unremarkable lawn sprinkler image to be precisely $1.67. Even prior to determining if the alleged infringement actually occurred,
I am willing to offer Getty Images $33.40, or 20-times the fair market price of the image, just to amicably and expeditiously close this matter for both Getty Images and <<MY_COMPANY>>.
Needless to say, your $720 settlement demand amount for the alleged infringement -- which is over 431-times the fair market price -- is ridiculously exorbitant based upon overwhelming market conditions, including the 1,607 “lawn sprinkler” image results from your own subsidiary, iStockphoto.
If you chose to reject the above offer, I ask that you provide the following information to establish your rights to The Image and to further support your settlement demand amount:
- Please provide proof of Getty Image’s right to manage The Image.
- Please provide proof of proper copyright registration and the chain of title for The Image.
- Please establish Getty Image’s specific claims as to the duration of the alleged infringement. <<MY_COMPANY_WEBSITE>> is composed of dynamic, frequently changing pages. In a month, a typical page can cycle through 2 to 10 iterations, with many changes responding to documented major and minor Google search algorithm changes, and each with vastly different page text and imagery. Because of this, a "start" date and "end" date to the alleged infringement does not imply that the alleged infringement was live for the full period between the "start" and "end" date.
- Please clearly establish the market value of The Image in Getty Image’s estimation. Please provide sales data of The Image at that price point and at the extra-small size for placement on a secondary page, below-the-fold.
- Please detail your calculation of this case’s share of the “costs incurred related to the pursuit of the unlicensed use”.
If you chose to reject my reasonable offer of settlement, I will expect and require the above information before proceeding further. As well, upon your rejection and if warranted, I will gladly retain legal counsel experienced in US copyright law to help us resolve this matter fairly.
Thank you again for notifying <<MY_COMPANY>> of this alleged infringement. Personally, I am a long-time user and admirer of iStockphoto.com, and even an approved photographic contributor to that site. As a content creator, I respect and appreciate the importance of the
fair and reasonable application of US copyright law.
I hope you find my settlement offer adequate to close this matter prior to both parties investing more time and resources to determine if the alleged innocent infringement did indeed happen.
Sincerely,
<<MY_FULL_NAME>>
<<MY_COMPANY>>
<<MY_COMPANY_ADDRESS>>
<<MY_COMPANY_PHONE_NUMBER>>
<<MY_COMPANY_SUPPORT_EMAIL_ADDRESS>>
This letter is sent pursuant to Federal Rule of Evidence 408
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