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Getty Images Letter Forum / Re: NEED VERIFICATION
« on: April 13, 2009, 11:35:11 AM »
Hey Mike:
Thanks for the post. I of course was aware of Daniel Ballard's post. I remind you that even his post was a just a quick forum response to the general issue not a fully briefed, written out legal opinion. From his other posts on Avvo, I can tell that Daniel is a highly capable, experienced IP lawyer. In fact, very often whichever of us answers an Avvo IP questions first, is followed by the other saying I agree with the prior post, so we agree much more often than not. He has referred readers to some of my posts for answers and I have sent many readers to some of his posts for answers. We also do not disagree on the law on this issue only on the manner in which Getty is responding to this issue. As I have said many times over, Getty is not doing something illegal, it is just overbearing and high pressure. I think if I were to chat with Daniel for awhile we would see more eye to eye on this. It is Getty's demands and there refusal to cut a break to small Mom and Pops that had no idea they were using someone else's images that disturbs me the most. You don't need to swat a fly with a machine gun.
As to the lawsuits, most of them were defaults or were settled without an answer being put in and then the terms of settlement were confidential. And as Matt correctly states, we are constantly updating and revising our info based on what is happening right now. Our statements were accurate to the best of our knowledge at the time of their posting. You are also correct that Getty cannot sue without registering the images and they do indeed register before filing the suit. They still seek actual damages in the suits because at the time of the infringement the images were unregistered. As time passes on and Getty continues this program, there may be infringement in images Getty has registered (as is the case with almost all of the Masterfile claims as Masterfile registers all its images upon acquiring the rights to the images)
I also think it is important to note how Getty has changed its position over time. Its initial letters spoke of statutory damages and legal fees and now they are only seeking actual damages; NCS recovery used to talk about putting people in collection and trying to collect a debt, now they recognize they cannot do that and are "attempting to settle a claim;" Getty then went on to state they were looking for "multiplier damages" then when our letters began contesting that, they withdrew from that argument as well. So Getty is indeed changing its arguments as we continue to address them.
Can a judge see things Getty's way, of course, in litigation anything can happen, but I believe Getty will not be looked on favorably if they continue to insist on damages to which they are not entitled. Go on their own site and use their image price calculator and you will see that for a two year license on a website it comes up to $600 or so. Now of course no small company would pay that when you can acquire images for $5 to $50 for the same use, but even using Getty's numbers why do they insist on twice that in their letters when they are only entitled to actual damages? And how about the claim by photographers that Getty is readily licensing their images for $2 to some end users? And what about folks who did not use the image for two years? If you only want the image for a few months, the pricing scheme drops down to $49? So why is Getty insisting on $1,000 even when they have no proof of how long the image was up and you can prove the image was only up for two months or so? And what about folks who purchased the image from web developers who gave them a warranty of originality? It may be legal but is it FAIR to treat those end users the same. Shouldn't they be given a break under the circumstances? Don't you think a court will take all of this into consideration? I certainly do and you can look at how the recording industry cases were treated.
Finally, it is important to note without getting to into legalese, that Getty is relying on a claim of actual damages based on what they call a retroactive license - meaning the copyright holder is awarded money based on an imaginary license they negotiated backward with the user. Not all Federal courts have recognized this type of actual damages claim and there is not exactly a ton of case law showing what its limits are. I think Getty is putting a lot of eggs into this basket and if they are right OK they win, but most of these small businesses will just close and not be susceptible to collection of a damages award as they own nothing but their name. But if Getty is found to only be entitled to $200 or less per image, then their whole program is in jeopardy. That's why I think it is in both sides interests to negotiate reasonably taking all of the various arguments into account and realizing that every case is different and some people are entitled to a second chance. I hope cooler heads will prevail.
Thanks for the post. I of course was aware of Daniel Ballard's post. I remind you that even his post was a just a quick forum response to the general issue not a fully briefed, written out legal opinion. From his other posts on Avvo, I can tell that Daniel is a highly capable, experienced IP lawyer. In fact, very often whichever of us answers an Avvo IP questions first, is followed by the other saying I agree with the prior post, so we agree much more often than not. He has referred readers to some of my posts for answers and I have sent many readers to some of his posts for answers. We also do not disagree on the law on this issue only on the manner in which Getty is responding to this issue. As I have said many times over, Getty is not doing something illegal, it is just overbearing and high pressure. I think if I were to chat with Daniel for awhile we would see more eye to eye on this. It is Getty's demands and there refusal to cut a break to small Mom and Pops that had no idea they were using someone else's images that disturbs me the most. You don't need to swat a fly with a machine gun.
As to the lawsuits, most of them were defaults or were settled without an answer being put in and then the terms of settlement were confidential. And as Matt correctly states, we are constantly updating and revising our info based on what is happening right now. Our statements were accurate to the best of our knowledge at the time of their posting. You are also correct that Getty cannot sue without registering the images and they do indeed register before filing the suit. They still seek actual damages in the suits because at the time of the infringement the images were unregistered. As time passes on and Getty continues this program, there may be infringement in images Getty has registered (as is the case with almost all of the Masterfile claims as Masterfile registers all its images upon acquiring the rights to the images)
I also think it is important to note how Getty has changed its position over time. Its initial letters spoke of statutory damages and legal fees and now they are only seeking actual damages; NCS recovery used to talk about putting people in collection and trying to collect a debt, now they recognize they cannot do that and are "attempting to settle a claim;" Getty then went on to state they were looking for "multiplier damages" then when our letters began contesting that, they withdrew from that argument as well. So Getty is indeed changing its arguments as we continue to address them.
Can a judge see things Getty's way, of course, in litigation anything can happen, but I believe Getty will not be looked on favorably if they continue to insist on damages to which they are not entitled. Go on their own site and use their image price calculator and you will see that for a two year license on a website it comes up to $600 or so. Now of course no small company would pay that when you can acquire images for $5 to $50 for the same use, but even using Getty's numbers why do they insist on twice that in their letters when they are only entitled to actual damages? And how about the claim by photographers that Getty is readily licensing their images for $2 to some end users? And what about folks who did not use the image for two years? If you only want the image for a few months, the pricing scheme drops down to $49? So why is Getty insisting on $1,000 even when they have no proof of how long the image was up and you can prove the image was only up for two months or so? And what about folks who purchased the image from web developers who gave them a warranty of originality? It may be legal but is it FAIR to treat those end users the same. Shouldn't they be given a break under the circumstances? Don't you think a court will take all of this into consideration? I certainly do and you can look at how the recording industry cases were treated.
Finally, it is important to note without getting to into legalese, that Getty is relying on a claim of actual damages based on what they call a retroactive license - meaning the copyright holder is awarded money based on an imaginary license they negotiated backward with the user. Not all Federal courts have recognized this type of actual damages claim and there is not exactly a ton of case law showing what its limits are. I think Getty is putting a lot of eggs into this basket and if they are right OK they win, but most of these small businesses will just close and not be susceptible to collection of a damages award as they own nothing but their name. But if Getty is found to only be entitled to $200 or less per image, then their whole program is in jeopardy. That's why I think it is in both sides interests to negotiate reasonably taking all of the various arguments into account and realizing that every case is different and some people are entitled to a second chance. I hope cooler heads will prevail.
I also found out this morning that some of these people are now copying a picture of me that your “professional” cohort, Mathew Chan, has allowed to be posted on your web site, and are using it as a dart board. What does that have to do with your stated mission, Oscar? You are turning your web site into a circus.