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« on: April 13, 2011, 04:58:39 PM »
Debbie,
My situation was nearly identical to yours. Using a strategy I crafted from nuggets I learned on the ELI site, I believe I have successfully "made the issue go away" and avoided paying any fees to Masterfile.
My advice: (Note Masterfile monitors this forum):
1. Mastefile's letters are designed to intimidate you and/or foster a sense of guilt that you have deprived artists of just compensation. Don't fall for it. These guys are cyber-thugs that are trying to make money by muscling innocent victims. Take a deep breath and realize that if you had no intent to defraud Masterfile, you are, at most, guilty of innocent infringement, an offense for which a judge can choose to fine you as little as $200.
Masterfile's position is not as strong as they would have you believe. First, in any legal action against you, Masterfile must prove their copyright claim and that can present difficulties they do not acknowledge. Second, most of their images are not unique; most victims, had they realized there was a potential copyright issue, would have substituted a public domain image rather than pay a licensing fee to use Masterfile's stock image. Moreover, your use of the disputed image on a small business web site did not substantially undermine the image's commerical value; it recieved relatively little public exposure. Thus, Masterfile's damages from your potential innocent infringement are minimal. Finally,a quick look at their website will reveal unrealistically high prices for many unremarkable images. It seems clear that their pricing strategy is designed soley to support a business model of "retroactive licensing." This would be evident to a judge as well.
2. Take down the disputed image from your site immediately.
3. Respond promptly to all paper correspondence in kind. Send certified letters in response to their FedEx packages.
4. Do not acknowlege any infringement. State you have no reason to believe your web developer used their image. State that if your image is in fact the same as the one they claim copyrights to, then you would, at worst, be guilty of innocent infringement. State that you have removed the disputed image from your site and that, for your convenience, you are prepared to offer them a payment of $300 in exchange for a release from liablility. Remind them this is more than a judge would likely award for a single instance of innocent infringement.
6. They will reject your offer and send a second demand for payment via FedEx . This second demand will threaten to bring legal action against you if you do not remit payment on an unrealistic timeline. In fact, the deadline may have expired before you recieve their demand. This is designed to intimidate you into submission--do not let it. Respond promptly to their demand by mail, restating the main points of your first letter.
7. They will "graciously" offer to save you money and expedite settlement by communicating via e-mail or phone. Do NOT telephone them or respond to their e-mails. Their intent is to drive you to an informal settlement negotiation where they have an advantage by virtue of their experience. If yours is truly a case of innocent infringement, let your written correspondence stand for itself.
7. Ultimately, this is an "expense" vs "potential return" equation for Masterfile. They do not want do expend resources pursuing litigation that will not produce a significant payoff. If you've documented your reasonable offer and the facts of your innocent infringement, they are likely to determine there is no value in pursuing a case against you, particularly for an initial claim of only $4000.
8. As a last resort, they will likely refer the matter to their contracted collection agency, NCS. Again, respond promptly to any paper correspondence from NCS in kind. Do not engage in informal communcaiton (telephone or e-mail). Respond to NCS by mail, stating that you dispute their claim, that you deny any liability to Masterfile, that you have no contractual relationship with Masterfile, and that you will not comment further on the matter with anyone but an employee of Masterfile who is empowered to enter a legal agreement on behalf of Masterfile.
9. There is always a risk Masterfile could elect to pursue legal action. But, if you can docurment that Masterfile rejected a reasonable, good faith settlement offer, a judge may well choose to view their complaint as a nuisance suit. I accepted the risk of litigation and made the decision I was willing to pay a lawyer to fight Masterfile for what I consider to be extortion. So far, that has not been necessary.
10. Good luck and don't let the bastards get you down.
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