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Getty Images Letter Forum / Re: Possible to make generic letter available?
« on: December 18, 2009, 09:30:32 AM »
Here is the text I have prepared. Some of it is copied verbatim from Matthew's letter. Matthew, would you mind reading it over and letting me know if there is anything you'd like changed, or giving me permission to use portions of it. I wouldn't want to get into trouble for stealing your copyrighted material. 
Yes, I'm trying to be funny, but serious as well. I want to make sure you get the credit for all the hard work you have put into this.
All comments appreciated.
I am looking at sending this off Monday.
Thanks again all,
Rod
Yes, I'm trying to be funny, but serious as well. I want to make sure you get the credit for all the hard work you have put into this.Quote
15. Dec. 2009
Getty Images
601 N. 34th Street
Seattle, WA 98103
Reference #: 6070585
Case #: 940220
Dear Getty Images:
Thank you for your letter, dated 19 November, 2009, received 8 December, 2009, regarding an allegedly infringing images on secondary pages of our website. You have brought to our attention these images actually belong to professional artist/photographers which you claim to represent, and thus they do not belong in the public domain.
I want you to know that I am treating this issue with the highest regard and attention. I was quite shocked and horrified by your letter, not only because of the alleged infringement, but also by the aggressive and insulting tone. As a designer, my designs are copyrighted and the protection of my designs against infringement is important. I highly value the copyrights and intellectual property rights of all individuals.
I cannot apologize enough for this unfortunate circumstance. When I had my website designed, I took pains to request only public domain images be used. I received assurances that every image on the website was not in anyway copyrighted or rights managed. Despite the fact that this is very embarrassing, I also understand that the only way to peacefully resolve a problem is to acknowledge your issues and your concerns. Better for me to be personally and professionally embarrassed than to have this matter be unnecessarily blown out of proportion.
I want you to know that within hours of my receiving your letter on 8 December, 2009, I had the offending images removed from my server. I can assure you that the use of the image was very much unintentional. I did not know, nor could have I reasonably known or discovered that they were not public domain images. I have yet to discover a free or inexpensive service that allows a company to have their website, or proposed website, scanned for potential copyright issues. As I am not a graphic designer, I am not familiar with which image services, such as your own, are available, nor would I be able to locate any image in these vast collections through visual means alone. There is simply no method available to me to check the source of the images provided to me by the graphic designer. I can only rely on the word of the alleged professional.
I have since done a second search through the Internet to try and discover a method of identifying the source of images that may have recently come available. I was not able to locate anything again. This means that I could not verify your claims independently. I could only verify that these images do exist in your catalogue.
I conducted an internal investigation with the original web programmer who placed the designs we received from the graphic designer onto the website, to clarify how and why this has happened. The short version is that I contracted the creation of the web template from a freelance web designer. The designer has since left the continent. As we guided the creative process in approving the web template styles we preferred, we were in no way associated with the acquisition or selection of individual elements for the template including the allegedly infringed images.
In closing out this portion of the letter, you can be assured I have entirely deleted the allegedly infringing files from our web hosting server and will no longer be using them in any way. This in no way constitutes admission of purposeful infringement, nor of agreement with your claim to represent the artists involved. In the case of an alleged infringement, it is best to remove the items in question until the claim is settled.
At this point of the letter, I would like to focus on the tone and Settlement Demand portion of your letter. While I most certainly understand and respect your need and right to protect your copyrights, there is generally a more cordial and professional way to do this.
Generally speaking, it is common business courtesy and practise to first issue a Cease and Desist letter allowing the alleged infringer the opportunity to correct the situation before threatening them. In this case, either remove the copyrighted material, prove usage rights, or pay a reasonable fee for the license.
As a building designer and builder, with access to a photographer, I could have produced appropriate images for my website with ease. Because the graphic designer was in a distant location, I did not pursue creating my own images, but rather allowed the designer to locate public domain images that were appropriate. As a very small business, of which I am the sole proprietor, I could not afford even one of your images. I would not want one of your images. In fact, I directed the designer to not use images from services such as yourself. My budget for the entire website, both the design and the programming was less than the price you quote for one image.
Please understand that I am bringing this issue up to put your Settlement Demand in perspective. This allegedly infringing image was one small element of a greater whole that was greatly changed and modified. The low-resolution image was placed in a secondary page of a low-volume website for decorative purposes only, not marketing purposes.
I understand that you contend because the image was on our website, the photographer lost money and we should pay for the usage of it. What I am telling you is, the photographers would never have earned any money from me in the first place because I would never have ordered any of these images on my own. These images were not integral nor essential to the design of the website, only decorative accents.
I assert we did not order web images from the graphic designer, nor would we have approved of them if we had known their source. We wanted and ordered a web template which happened to have “stolen” images components within it. I would have been fine with a stylistic and creative template with no images whatsoever if it had been presented to me. In fact, it was the banner and menu background that was of importance to me, the accent images were not even part of my consideration.
I would like to point out that when criminal behaviour happens, everyone in society loses. There are no winners. My company has taken a loss and will take further loss to requisition and replace all our web template elements with something that is “certifiably” authentic, self-created, and/or licensed. As such, it is unreasonable for you to expect someone to take a double loss so that Getty can “win”. Without meaning to be condescending, any reasonable business person can see that.
For your company to assert an outrageous and extortionistic “settlement fee” in such unfortunate circumstances is highly distasteful and disturbing. This action breeds much bad feelings and kills any goodwill your letter recipients may have had toward your company. Not only am I deterred from dealing with Getty Images, or any other such company, my friends in the industry who have heard of your practises are likewise deterred.
Recently there have been a large number of “settlement fee” emails and other money grabbing scams circulating. Your settlement letter, while exceptionally well put together, appears very similar. Since you claim to represent the photographers of these copyrighted images, you shouldn't mind sharing proof of copyright, and proof of a licencing agreement with the photographers in question. Otherwise, I only have your word that you have the right to even negotiate any “settlement”.
In addition, I would like to state that lack of a record with you does not mean a lack of right to use. As I have previously stated, I did not authorize the use of copyrighted material, however, as the designer has left the continent, I would not be able to verify that appropriate rights had been purchased. Just because you don't have a record for my company does not mean that I didn't have the right to use the images. Nor does my lack of proof mean that either.
Consider the following example:
While working in your garage one day, a representative for Canadian Tire comes by, enters your garage and recognizes several of their brand of tools in your collection. He presents you with an invoice for the rental of those tools for the past 2 years, at a monthly rate, since that is the earliest record they have of you using those tools. He states that unless you can produce a receipt for the purchase of those tools, you owe him the full balance of the invoice.
Does your lack of a receipt mean that you don't have the right to those tools? Does Canadian Tire have the right to invoice you if you don't have a receipt? If, in this case, you agree with Canadian Tire, that since you don't have a receipt, you should no longer use the tools, and stop using them, should Canadian Tire be assuaged?
I would like to share an analogy with you to illustrate one of my points with a scenario that frequently happens in the “real world”, shared with me by an acquaintance.
Pawn shops often buy DVD players and Video tape players (VCRs) both knowingly and unknowingly for re-sale. There are clear laws that pawn shops should not buy suspected stolen goods. But it happens anyway whether a pawn shop owner is honest or dishonest. They sell those stolen players to an unsuspecting customer and they in turn “use” it to play movies in their homes thinking they are the rightful owners of the players.
However, one day, law enforcement tracks down the stolen players to the unsuspecting customer's home, the police will confiscate the stolen players and return it to the rightful owner, no matter what the condition is. When that happens, the unsuspecting customer clearly incurs a loss. They get no refund or reimbursement from anyone unless the pawn shop voluntarily chooses to refund the money which isn't likely.
The rightful owner that had their players returned to them does not then go to the unsuspecting customer and insist they pay for any physical damages or rental fees for using the players. They also do not sue them. Why not? Because the unsuspecting customer did not know nor did they have intent. And when it is confirmed that it is stolen merchandise, it is returned. Plus, it is simply bad form.
I fully understand that this argument does not exactly match infringement and copyright issues but it does the job. I also understand the argument that if Getty Images did not take more aggressive steps toward everyone, there would be more piracy and infringements. However, the flaw in your argument is that you are going after everyone, guilty or not guilty. You are implying that the ends justify the means. And you are basing it on your company's sensibilities and sense of right and wrong. But you are not the judge, society and the courts are.
The end does not justify the means. In your efforts to “protect the photographers” and your company, Getty Images wants to steamroll over the legal and civil rights of others without due process? You will presume guilt over innocence for every letter you send out? This is highly inappropriate and unconscionable. Anyone with any dignity or self-respect would not tolerate this.
Just as you seem to be aggressively pursuing your position in this matter, I am just as aggressive in defending my position. Further, if I am aggressively provoked enough, you can be sure I will not simply defend this, I would take more proactive measures. With this letter, I trust it will not come to anything more severe.
I cannot speak for anyone else except myself. There may be many people who intentionally steal and use licensed images. I am not one of them. Forgive me but I don't accept your presumption of our financial responsibility of your so-called “losses” given these specific circumstances. As I said, everyone loses when criminal behaviour happens. I am already taking a loss without the “settlement fee”. What makes your position more entitled for restitution and reparation than mine? Anyone with common sense can see and understand this. I believe if any judge were to hear this case and evaluate the overall context, intent, and actual damages (if any) your company incurred, it would strongly weigh in my company's favour.
At this point, I could go on endlessly explaining my position and you may still disagree. I have done my research on Getty Images. There is widespread information on the extortionistic tactics Getty Images uses in these matters. In this regard, we are prepared. Without getting into any specific statements, I just want to say I will not “roll over”.
I respect your company. I respect your opinions. I thank you for bringing the alleged infringement to my attention. I promptly deleted the allegedly infringing images off the web server. You have received this long letter with my best explanations I can give with assurances that this matter is closed.
We have further work and expenses to incur to replace the “work” we paid for but must now destroy. This whole ordeal has already been frustrating and maddening. But all of us have to move on.
It is my hope that we can both move forward from this unfortunate circumstance peacefully. In closing, with this written reply, I consider this unfortunate matter and circumstance resolved and closed.
Thank you for your time, attention, and consideration of my explanations.
Respectfully,
All comments appreciated.
I am looking at sending this off Monday.
Thanks again all,
Rod